Kizzee, James v. The State of Texas--Appeal from 12th District Court of Walker County

Affirm and Memorandum Opinion filed October 31, 2006

Affirm and Memorandum Opinion filed October 31, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00461-CR

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JAMES KIZZEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 12th Judicial District Court

Walker County, Texas

Trial Court Cause No. 21,872

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

After a bench trial, the court convicted appellant, James Kizzee, of felony driving while intoxicated. Tex. Pen. Code Ann. '' 49.04(a), 49.09(b)(2) (Vernon 2003). The court sentenced appellant to two years= confinement probated for five years, with six months= confinement in the Walker County jail as a condition of probation. In his sole point of error, appellant contends the evidence is factually insufficient to prove he was intoxicated while operating a motor vehicle. We affirm.

Factual and Procedural Background

At approximately midnight on September 7, 2002, Officer Mike Legurski of the Huntsville Police Department stopped appellant=s vehicle after observing appellant make a left turn without using his turn signal. Legurski recognized appellant=s van and knew appellant had an occupational license because he detained appellant approximately one week earlier for a separate traffic violation. Upon being pulled over, appellant stopped his van in the driveway of his cousin=s mobile home. Legurski approached the van and asked appellant for his driver=s license. As appellant reached for his paperwork, his foot slipped off of the brake and the van began to roll toward the mobile home. Legurski testified appellant Agot the van stopped right before it crashed into the mobile home.@ While speaking to appellant, Legurski observed appellant=s mannerisms were slow, his speech was slurred, and the odor of alcohol was coming from either appellant or his vehicle. Suspecting appellant was intoxicated, Legurski asked appellant to step out of his van and perform field sobriety tests. Appellant performed the horizontal gaze nystagmus (HGN) test and the one-leg stand test but did not perform the walk-and-turn test because appellant claimed to have an injured ankle. Legurski observed all of the six possible clues of intoxication based on the HGN test and three of the four possible clues in the one-leg stand test. Based on his observations, Legurski determined appellant was intoxicated and took him into custody. Legurski then searched appellant=s van and found an open container of beer within reach of the driver. Although he initially denied having consumed any alcohol, appellant later admitted to Legurski that he had consumed a beer.

Legurski transported appellant to the Walker County jail where appellant performed the field sobriety tests again. This time appellant performed all three tests (HGN, walk-and-turn, and one-leg stand), and the results were similar to those obtained at the scene. Legurski videotaped appellant=s performances on the sobriety tests at the scene and at the jail, but neither tape recorded properly.[1] At the jail, appellant agreed to provide a sample of his breath for an intoxilyzer test. Officer Jose Valles, a certified intoxilyzer operator, administered the test and obtained two breath samples from appellant. The results of appellant=s intoxilyzer test showed a breath alcohol concentration of 0.198 and 0.195. On April 15, 2003, a Walker County grand jury indicted appellant for driving while intoxicated third offense. The indictment alleged appellant operated a motor vehicle in a public place while intoxicated Aby not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, or by having an alcohol concentration of at least 0.08.@ Appellant pleaded not guilty and waived his right to a jury trial.

During appellant=s trial, Officer Legurski testified that he has been certified in performing standardized field sobriety tests and detecting signs of intoxication for ten years. Legurski further testified about his observations of appellant on the night of appellant=s arrest, including: 1) appellant=s failure to control his van while searching for his paperwork, 2) appellant=s slurred speech and slow mannerisms, 3) the odor of alcohol emanating from appellant or his vehicle, 4) the open container of beer found in appellant=s vehicle, and 5) appellant=s failure of the field sobriety tests during the traffic stop and at the jail. On cross-examination, Legurski testified he has not received any continuing education pertaining to field sobriety testing since his initial certification.

Officer Valles testified he is a certified police officer, a certified instructor of field sobriety testing, and certified operator of the Intoxilyzer 5000.[2] Valles testified that on the night of appellant=s arrest, he obtained two breath samples from appellant, approximately thirty to forty-five seconds apart. The Intoxilyzer 5000 analyzed appellant=s breath samples, and the results showed an alcohol concentration of 0.198 and 0.195. A printout of the intoxilyzer test results was admitted into evidence. During cross-examination, Valles testified he does not understand the internal workings or technical aspects of the Intoxilyzer 5000. Rather, his training focused on the operation of the intoxilyzer and interpretation of its results.

The State=s next witness was Officer Glen Mercord, a technical supervisor in the Texas Department of Public Safety Breath Alcohol Testing Program. Mercord=s primary duties included maintaining the integrity of the testing program in his area; maintaining, inspecting, and repairing intoxilyzers; training operators in the use of intoxilyzers; and keeping records. Mercord testified that every intoxilyzer was checked via phone line and computer approximately once a week and was checked in person at least once per calendar month. The intoxilyzer used to test appellant=s breath samples was physically tested by a supervisor on September 3, 2002, four days prior to appellant=s arrest, and October 2, 2002. Mercord was not the technical supervisor who performed the testing. However, based on reports created by a previous technical supervisor, Mercord testified that the intoxilyzer used on appellant was functioning properly at the time of appellant=s arrest. Further, based on his training, experience, and the results of appellant=s breath test, Mercord opined that appellant was intoxicated at the time he provided the breath samples.

To rebut the State=s evidence, the defense called appellant=s cousin, Charlene Manning. Manning testified she was sitting on her front porch drinking a beer when appellant pulled into her driveway followed by a police officer. Manning claimed she never saw the van roll forward or come close to hitting her mobile home; she thought appellant was driving normally; and appellant=s speech sounded clear when he spoke to the police officer. Manning testified that she spoke to appellant for approximately twenty minutes while the officer searched appellant=s van, and she did not think appellant was intoxicated. Manning further testified appellant had Abad legs@ and his right foot had been cut and shot in the past. After a bench trial, the court found appellant guilty of felony driving while intoxicated and assessed punishment at two years= confinement probated for five years, with six months= confinement in the Walker County jail as a condition of probation. This appeal followed.

Discussion

I. Standard of Review

A factual sufficiency review begins with the presumption that the evidence supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

  II. Analysis

To prove appellant committed felony DWI, the State is required to prove beyond a reasonable doubt appellant was intoxicated while operating a motor vehicle in a public place and had two prior convictions for DWI.[3] Tex. Pen. Code Ann. '' 49.04(a), 49.09(b)(2). AIntoxicated@means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, or having an alcohol concentration of 0.08 or more. Id. ' 49.01(2)(A)B(B) (Vernon 2003). Hence, the State may prove intoxication either by showing appellant lost the normal use of his mental or physical faculties or by proving appellant had an alcohol concentration of 0.08 or more. Id.; Forte v. State, 707 S.W.2d 89, 95 (Tex. Crim. App. 1986).

Initially, we review the record for evidence supporting the guilty verdict. The State presented evidence of appellant=s alcohol concentration as well as his loss of normal use of mental or physical faculties. Two samples of appellant=s breath were obtained and analyzed by Officer Valles, a certified intoxilyzer operator, and the results showed an alcohol concentration of 0.198 and 0.195. Officer Legurski testified appellant reeked of alcohol, exhibited slurred speech and slowed mannerisms, and twice failed field sobriety tests. Therefore, we find the evidence supporting the verdict, when viewed in a neutral light and standing alone, is not so weak that the verdict is clearly wrong and manifestly unjust. See Zuniga, 144 S.W.3d at 484B85.

Next, we balance the evidence supporting the verdict with the contrary evidence to determine whether the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could have been met. In his brief, appellant points to the following evidence which he argues is contrary to the court=s finding of guilt: 1) the absence of videotape evidence of appellant performing field sobriety tests; 2) Legurski=s testimony that he received no continuing education regarding the administration of field sobriety tests; 3) Legurski=s testimony that he formed the opinion appellant was intoxicated by the time appellant exited his vehicle; 4) Legurski=s testimony that appellant claimed to have high blood pressure;[4] 5) testimony of Legurski and Manning indicating appellant had an injured ankle; 6) Manning=s testimony that appellant=s vehicle did not roll forward when appellant exited the vehicle; 7) Manning=s testimony that appellant behaved normally and did not seem intoxicated when she spoke to him on the night of his arrest; 8) Valles=testimony that he knew how to operate the Intoxilyzer 5000 and interpret its results, but did not understand the technical aspects of how the intoxilyzer functioned; and 9) Mercord=s testimony that he was not a technical supervisor at the time appellant=s intoxilyzer test was administered.

In a bench trial, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). The trial court is authorized to accept or reject any or all of the testimony of the witnesses. Id. Thus, the trial court was free to believe Legurski=s testimony regarding appellant=s appearance and behavior on the night of his arrest, despite the conflicting testimony offered by Manning. See id. Further, in order for a police officer to testify as an expert on the administration of a field sobriety test, he need only prove he is certified to administer the test by the State of Texas. See Held v. State, 948 S.W.2d 45, 51 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (citing Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994)). At the time of appellant=s arrest, Legurski was certified by the State of Texas to perform field sobriety tests, including the HGN, walk-and-turn, and one-leg stand tests.

Importantly, the record contains little, if any, evidence which contradicts the State=s evidence of appellant=s alcohol concentration at the time of his arrest.

We have reviewed the entire record. Based on this record, we cannot say the evidence contrary to the verdict is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. As the evidence is factually

sufficient to support appellant=s conviction, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed October 31, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.

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

[1] Officer Legurski testified that the video recording equipment at the jail had been having problems Aoff and on for quite some time@and failed to record on the night of appellant=s arrest. Legurski further testified that the videotape of appellant made from Legurski=s patrol car contained no audio.

[2] In 1999 or 2000, Officer Valles successfully completed a course of instruction and became a certified operator of the intoxilyzer 5000. Thereafter, he maintained his certification by completing an annual re-certification process.

[3] The State introduced evidence showing appellant had two prior convictions for DWI. Appellant does not dispute this issue on appeal.

[4] Appellant argues evidence that he has high blood pressure provides an alternative explanation for appellant having reddening of the eyes at the time of his arrest. However, none of the State=s witnesses testified appellant had red eyes when he was arrested. Therefore, evidence of appellant=s high blood pressure is not contrary to the State=s evidence.