Darrell Jerome Holt v. The State of Texas--Appeal from 287th District Court of Parmer County
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NO. 07-06-0028-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 23, 2006
______________________________
DARRELL JEROME HOLT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;
NO. 2682; HON. GORDON H. GREEN, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant, Darrell Jerome Holt, appeals his conviction for driving while intoxicated.
His three issues involve the legal and factual sufficiency of the evidence. He contends that
the evidence was legally insufficient to prove that he had a blood alcohol concentration of
at least .08 at the time of his arrest and that it was legally and factually insufficient to prove
that he had lost the normal use of his mental or physical faculties at the time of his arrest.
We affirm the judgment of the trial court.
Issue 1 - Legal Sufficiency of Blood Alcohol Concentration
The State alleged in the indictment alternative ways of proving that appellant was
intoxicated. The first involved his having a blood alcohol concentration of at least .08. The
second encompassed appellant lacking the normal use of his mental and physical faculties
by reason of ingesting alcohol. It is the first that we address here.
The standard by which we review the sufficiency of the evidence is well established.
We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), Zuliani v. State, 97
S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App.
2000) for an explanation of them.
Appearing of record is the testimony from both officers who were present when
appellant attempted to perform various field sobriety tests. One of the officers testified,
several times, that appellant’s performance on those tests indicated that appellant had a
blood alcohol level of at least .08. Irrespective of whether this testimony was admissible,
see Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994) (wherein the Court of
Criminal Appeals held that a witness may not attempt to quantify one’s blood alcohol level
from evidence of how one performed field sobriety tests), it was nonetheless received into
evidence without objection from appellant.1 And, being received into evidence, it must be
1
The record discloses that in response to one of the multiple utterances by the officer, appellant
informed the trial court that he objected. However, nothing was said of the grounds underlying his objection.
Nor did appellant request a running objection of any kind. So, because the same testimony was admitted
without objection elsewhere during the trial, he waived any complaint he may have uttered to our consideration
of the utterance when assessing the sufficiency of the eviden ce. See La ne v . State, 151 S.W .3d 188, 192-93
(Tex. Crim. App. 2004) (holding that unless the litigant obtains a running objection, he waives any complaint
he may have as to the adm ission of particular evidence when the sa m e or like evidence is received elsewhe re
without objection). In othe r words, the respo nsibility fell upon ap pellant to obje ct to the supposed inadm issible
evidence, and when he failed to do so, the evidence m ust be cons idered in determining whe ther the record
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considered by us in determining whether the verdict enjoyed the support of legally sufficient
evidence. Chambers v. State, 711 S.W.2d 240, 245-46 (Tex. Crim. App. 1986) (noting the
general rule requires the reviewing court to consider “all the evidence before the trier of fact
in determining sufficiency questions,” including evidence which may have been
inadmissible but was nonetheless received without objection). Finally, we deem it some
evidence of record upon which a rational factfinder could hold, beyond reasonable doubt,
that appellant had a blood alcohol level of .08 at the time of his arrest and overrule the
issue.
Issues 2 and 3 - Sufficiency of the Evidence of Impairment
Appellant next argues that the evidence was legally and factually insufficient to show
that he lacked the normal use of his mental and physical faculties due to the consumption
of alcohol. We overrule these issues as well.
The record contains evidence of appellant’s performance on three field sobriety
tests. From that performance, an officer concluded that appellant should not have been
driving but also had a blood alcohol level sufficient to legal intoxication, i.e. a blood alcohol
level of .08. Yet, that is not all the evidence on the matter. Also of record is evidence that
while driving a semi tractor/trailer, appellant swerved from his lane of traffic and entered
that containing oncoming vehicles. Furthermore, at least one vehicle had to leave the lane
supported the ve rdict. See Fe rnan dez v . State, 805 S.W .2d 451, 455 (Tex. Crim. App. 1991) (holding that
the appellant was responsible for objecting to the hearsay and because he did n ot, the trier of fact was
authorized to consider it in reaching its verdict); Ch am bers v. State, 711 S.W .2d 240, 245-46 (Tex. Crim. App.
1986) (noting the general rule requires the reviewing court to consider “all the evidence before the trier of fact
in determining sufficiency questions,” including evidence which may have been inadmissible but was
nonetheless received without objection). Finally, appellant does not present an issue on appeal wherein he
questions the trial court’s decision, if any, to admit the evidence. Thus, whether admission of the evidence
was error is not befo re us .
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into which appellant improperly entered and that vehicle was driven by the arresting
officer.2 Furthermore, appellant also smelled of alcohol and had two cold open cans of
beer in the glove box of his truck. One can had remnants of beer in it while a substantive
quantity of beer remained in the other. Other unopened cans of beer were also found in
the truck. Furthermore, appellant fell asleep in the arresting officer’s vehicle shortly after
being placed there. So too did appellant refuse to take a breath test. See State v. Marrs,
104 S.W.3d 914, 918 (Tex. App.–Corpus Christi 2003, no pet.) (holding that one’s refusal
to take a breath test is admissible). The foregoing, when considered together, is some
evidence upon which a rational jury could find, beyond reasonable doubt, that appellant’s
mental and physical abilities were impaired due to the ingestion of alcohol. And, while
there is evidence to the contrary, such as a passenger in appellant’s truck asserting that
he (the passenger) had drunk the beer, it was left to the factfinder to decide who to believe.
In short, the jury’s finding was not supported solely by weak evidence or overwhelmed by
contrary evidence. Rather, we can conclude, based upon a neutral review of all the
evidence that the jury was rationally justified in finding beyond reasonable doubt that
appellant’s physical and mental faculties were impaired due to the ingestion of alcohol.
Consequently, its decision enjoyed the support of factually sufficient evidence.
The judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Publish.
2
Appellant offered e xcu ses that he was both fatigued a nd re ach ing for a ch icke n gizzard.
4
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