Robert Craig Davis v. State of Texas--Appeal from County Criminal Court at Law No 14 of Harris County

No. 04-00-00409-CR
Robert Craig DAVIS,
Appellant
v.
The STATE of Texas,
Appellee
From the Criminal Court at Law No.15, Harris County, Texas
Trial Court No. 99-48991
Honorable Rowena Young, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 20, 2001

AFFIRMED

Robert Craig Davis appeals from his conviction of driving while intoxicated. Davis challenges the factual sufficiency of his conviction. We find that the evidence is factually sufficient to sustain the jury's verdict of guilt, and therefore affirm Davis's conviction.

Background

On November 7, 1999, Officer Schliter, of the Webster Police Department, observed Davis operate his car, activated his lights and initiated a traffic stop. Upon approaching Davis's car, Officer Schliter smelled alcohol emanating from the car. Officer Schliter asked Davis to perform four motor skills tests. Failing to successfully perform the four field sobriety tests, Davis was placed under arrest and transported to the Webster Police Station where he was again asked to perform the same four sobriety tests that were administered at the scene. Davis again failed all four tests, and was subsequently charged with driving while intoxicated. Davis pled not guilty to the charge and proceeded to a jury trial. The jury returned a verdict of guilty and assessed punishment at three days in the Harris County Jail, a fine of $500, and a one year suspension of Davis's driver's license.

Standard of Review

When conducting a factual sufficiency review of the elements of the offense, we must examine all the evidence impartially, and set aside the jury verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann 49.04(a) (Vernon Supp. 2001). Davis does not dispute that he was operating a motor vehicle in a public place. However, Davis contends that the evidence was factually insufficient to support the jury's verdict of guilt, specifically that the evidence did not reflect that he had lost the normal use of his physical or mental faculties due to the introduction of alcohol into his body.

Testimony of Officer Schliter

Officer Schliter testified that he observed Davis weaving across the dividing line between two westbound lanes on three separate occasions, striking the curb on the right-hand side of the road on one occasion, and driving 20-25 miles per hour in a 35 miles per hour zone. Officer Schliter could smell alcohol emanating from Davis's car and upon Davis getting out of the vehicle, Officer Schliter stated that he could smell alcohol coming from Davis's breath. He observed that Davis's eyes were "somewhat bloodshot, red, or puffy, and that his face was almost blood red." Officer Schliter also testified that he asked Davis for his license, and that while Davis was going through numerous cards in his wallet trying to locate his license he passed it up three times. Officer Schliter then asked Davis to step out of the car and submit to some motor skills tests. Officer Schliter stated that these tests are designed to be simple and objective, and used to determine whether an individual is intoxicated. He first asked Davis to perform the head tilt test, whereby Davis was to put his head back at a forty-five degree angle, look up to the sky, and estimate when 30 seconds had elapsed. Officer Schliter testified that while Davis was performing this exercise Davis was off balance, that he swayed backwards and forwards during the test and that Davis estimated 40 seconds instead of 30 seconds.

Officer Schliter next asked Davis to perform the finger-to-nose test, whereby Davis was to touch the tip of his nose with the tip of his index finger while keeping his eyes closed. When Davis first closed his eyes he began to sway backwards and forwards, and that Davis was never able to touch the tip of his nose with the tip of his index finger. Officer Schliter then asked Davis to perform a third motor skills exercise called the leg raise test, whereby Davis was to extend his foot approximately six inches off the ground and maintain that position until he counted to sixty. Davis was unable to raise either leg off the ground, and when he attempted to raise either foot he would fall off balance or move significantly. The last test Officer Schliter asked Davis to perform was the heel-and-toe test, whereby Davis was to place one foot in front of the other and take eight steps in one direction heel to toe along a straight line, then turn around and take eight steps heel to toe back to the starting point. (1) Davis was unable to touch his heel to his toe in any of the eight steps in either direction, was again significantly off balance, and twice fell off the line that he was walking along. It was Officer Schliter's testimony that Davis's cumulative performance of the four motor skills tests indicated to him that Davis was intoxicated. Officer Schliter placed Davis under arrest for suspicion of driving while intoxicated and transported him to the police station. On the way to the police station, Officer Schliter explained to Davis that he would have another opportunity to perform the four motor skills tests, and that these tests would be videotaped. Officer Schliter then testified that during the performance of the four sobriety tests Davis swayed backwards and forwards, fell off balance, and seemed confused about the instructions given to him. Officer Schliter testified that it was his opinion, based on the exercises performed at the scene and then again at the police station, that Davis did not have the normal use of his mental faculties, and that Davis was impaired due to the introduction of alcohol into his body.

Testimony of Davis

Davis, who has been employed as an airline pilot for eleven years, testified that he flew from Denver, Colorado, to Austin, Texas the night before he was arrested. Davis testified that after arriving in Austin, Texas, at about 8:00 a.m. on November 7, 1999, he then flew on to Houston, Texas, to meet some friends for dinner that evening. Davis testified that he took about a two-hour nap and at about 8:00 p.m. left to meet his friends. He met his friends at a jazz club, and they all went to the restaurant in his car. Davis stated that he did not have anything to drink while at the jazz club, and that he only had one and one-half glasses of wine throughout the three-hour dinner. He left the restaurant at approximately 11:30 p.m. and drove his friends back to the jazz club where their cars were located. Davis testified that he did go into the jazz club to say goodbye to his friends and that he stayed in the club for about twenty minutes, but that he did not have anything to drink while in the club.

Shortly thereafter, Davis was pulled over by Officer Schliter. Davis testified that he did not cross the dividing line between the two westbound lanes, that he did not strike the right-hand side of the curb, and that he was going twenty-five miles per hour because he was slowing down for an upcoming traffic light. Davis testified that he did not lose the normal use of his mental or physical faculties by the introduction of alcohol into his body when he was driving or at any other time throughout the evening. Davis vigorously claims that he was extremely tired due to flying all night and lack of sleep. Davis also testified that he voluntarily informed Officer Schliter that he had been at dinner with friends wherein he consumed one and one-half glasses of wine because he thought Officer Schliter might be able to smell alcohol on his breath. Davis maintains that his eyes were not red or bloodshot due to alcohol, but because his contact lenses and allergies were aggravated by the smoke in the jazz club. Davis further testified that when Officer Schliter asked him to perform the motor skills tests he fully complied and remained cooperative throughout the entire process. Before performing the leg raise motor skills test, Davis stated that he informed Officer Schliter that he had undergone knee surgery on both knees fourteen months prior, that his knees were sore most of the time, that he had limited ability, and that he was not "real steady or stable on just one foot." After being arrested and transported to the police station, Davis was invited to take a breath test. Davis, however, declined to do so because "he felt uncomfortable with the whole situation." Furthermore, Davis testified that when he was at the police station, he felt very nervous, and that his confusion concerning the sobriety tests occurred because two police officers were in the room and both were giving him directions, not because he was intoxicated.

Analysis

Issues of witness credibility are the jury's domain, and we may not substitute our view of witness credibility for the constitutionally guaranteed jury determination. See Johnson, 23 S.W.3d at 9. In other words, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. See Jones v. State, 944 S.W.2d 642, 648-49 (Tex. Crim. App. 1996). Although Officer Schliter testified that Davis's appearance could be due to fatigue and that some of his actions, including some loss of his mental and physical faculties could be consistent with exhaustion, Officer Schliter's testimony also provided evidence that supports the jury's determination that Davis was operating a motor vehicle while intoxicated. And even though the record contains evidence that Davis was overweight, weak kneed, and thus possibly unable to perform two of the sobriety tests (i.e., the leg raise and the heal-and-toe test), the record contains Officer Schliter's testimony and a videotape of Davis's performance which suggest that Davis's failure to successfully perform the two other sobriety tests (i.e., the head tilt and the finger-to-nose test) could be due intoxication. Unless the available record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. See Johnson, 23 S.W.3d at 8. Because we remain cognizant of the fact finder's role and unique position, a position that we are unable to occupy, we find that the evidence was factually sufficient to prove that, on the night in question, Davis lost the normal use of his physical or mental faculties due to the introduction of alcohol into his body.

Appellant's issue is overruled and the judgment of the trial court is affirmed.

Alma L. L pez, Justice

Do Not Publish

1. The line used for this test was a tar seam between two concrete pads in the parking lot that Davis pulled into.