Juan Garcia v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-00-00095-CR
Juan Sanchez GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From, the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-6911
Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

A jury found Garcia guilty of the felony offense of driving while intoxicated. The trial court imposed a twenty-five year sentence on Garcia as a habitual offender. On appeal, he asserts the evidence is factually insufficient to support the jury's verdict of guilty. We disagree with his allegations and affirm the lower court's judgment.

Standard of Review

Reviewing evidence under a factual sufficiency challenge, we examine the evidence weighed by the jury tending to prove an elemental fact in dispute and compare this with the evidence tending to disprove the same fact. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997)). While we are authorized to disagree with the fact finder's decision, we set aside the verdict only if "such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 7, 9;Clewis v. State, 922 S.W.2d 126, 129, 135 (Tex. Crim. App. 1996).

Factual Sufficiency of the Evidence

The evidence at trial included testimony of the arresting officer and a video tape of Garcia performing sobriety tests in the intoxilyzer room. At trial the arresting officer's testimony established the following. The officer pulled Garcia over after clocking him driving 61 miles per hour in a 35 miles per hour speed zone. After approaching Garcia in his vehicle, the officer smelled alcohol and noticed his slurred speech. Suspecting intoxication, the officer performed a horizontal gaze nystagmus on Garcia. During the test, all six of the possible indicators were positive for intoxication. The officer also performed the Romberg test on Garcia which likewise indicated intoxication. Then the officer instructed Garcia to perform the one-leg stand test which he was unable to complete. During the walk and turn test, Garcia's performance on all eight evaluation points indicated intoxication. Garcia also was unable to count from 57 to 43 without error. The officer then placed Garcia under arrest. Garcia refused to take a breath test at the police station. The officer video taped Garcia after he refused the test. In addition to this testimony, the jury viewed the video of Garcia performing sobriety tests. While the State's evidence supports the jury's decision, we must also review the evidence favoring Garcia.

Garcia points out the arresting officer took codeine and other medication just prior to his testimony. However, the record indicates he answered the questions in a responsive and logical manner. Furthermore, the jury was aware of this information and could decide what weight to give his testimony. Additionally, Garcia contends the arresting officer wrote some notes on his hand concerning the arrest which did not appear on the final report. Correspondingly, he argues the officer did not recall placing food in Garcia's trunk before having his car towed until prompted by defense attorney. Garcia also complains about other omissions from the report such as the officer not marking appropriate boxes indicating slurring speech. (1) While this evidence indicates the officer omitted some facts from his report, its relevance speaks to the credibility and weight of his testimony.

Conclusion

The police officer's failure to denote every fact relating to an arrest will not suffice to overturn a conviction for factual sufficiency. Recognizing the fact finder's role, we must employ due deference to the jury's assessment of the credibility of the witnesses and the weight to be given their testimony. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 135. Clearly, the jury could have rejected any or all of the offered testimony. Considering the arguments presented and the respect owed to the jury's decisions, we find the judgment is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, S.W.3d at 9; Clewis, 922 S.W.2d at 135. Therefore we find the evidence is factually sufficient to support the jury's verdict. Accordingly, we overrule Garcia's sole issue and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. The fact was included in the narrative portion of the officer's report.