Orlando Acevedo v. The State of Texas--Appeal from County Court at Law No 5 of Bexar County

MEMORANDUM OPINION

No. 04-04-00048-CR

Orlando ACEVEDO,

Appellant

v.

State of TEXAS,

Appellee

From the County Court at Law No. 5, Bexar County, Texas

Trial Court No. 837927

Honorable Tim Johnson, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

Orlando Acevedo appeals his conviction for driving while intoxicated claiming the evidence was insufficient to support the conviction. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4.

1. Acevedo says the only evidence against him was the arresting officer's testimony and it was insufficient to prove the elements of the offense. Officer Mike Towers testified that at 2:40 a.m. he observed a vehicle moving a little too fast, and watched as it turned right on a red light without stopping. The officer stopped the vehicle, driven by Acevedo, and determined from Acevedo's manner of driving, his slurred speech, the appearance of his eyes, and the odor of alcohol that Acevedo might be intoxicated. Acevedo admitted he had been drinking at a party. The officer then asked Acevedo to perform standard field sobriety tests, which he agreed to do. On the basis of Acevedo's performance on these tests, the officer concluded that Acevedo was intoxicated. The State did not introduce any blood-alcohol or videotape evidence.

2. It is well-established that the testimony of an arresting officer is sufficient to prove intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979). Officer Towers' testimony was therefore sufficient to support the elements of the offense charged. The issue is overruled.

3. Acevedo also says Officer Towers' testimony, in some particulars, conflicted with his previous testimony at the administrative license revocation hearing and that, consequently, its reliability was undermined. He says the trial court should have excluded the testimony because the danger of unfair prejudice outweighed its relevance. See Texas Rules of Evidence 403. The objection was not raised in the trial court and the error, if any, is not preserved.

4. The issue is overruled and the conviction is affirmed.

Paul W. Green, Justice

DO NOT PUBLISH