Billy Wade Fulton v. The State of Texas--Appeal from County Crim Court No 7 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-169-CR

BILLY WADE FULTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 7

Dallas County, Texas

Trial Court # MB93-38389-H

O P I N I O N

Appellant Fulton appeals his conviction for driving while intoxicated, for which he was sentenced to 120 days in jail, probated for 24 months, and a $750 fine.

Appellant was arrested by Officer Wilhelm of the Sachse police department on September 21, 1993, and was charged with DWI. On March 31, 1995, Appellant waived a jury and pled "not guilty" before the court. The court found him "guilty" and sentenced him to 120 days in jail, probated, and a $750 fine.

Appellant appeals contending: "The evidence was factually insufficient to show that Appellant was intoxicated."

Specifically, Appellant seeks review of his conviction under the factual sufficiency standard of review as set out in Stone v. State, 823 S.W.2d 375, 377 (Tex. App. Austin 1992) and Clewis v. State, No. 45-093, slip op. (Tex. Crim. App. January 31, 1996).

Prior to Clewis, supra, our courts of appeal were divided as to the Stone factual sufficiency standard. In Clewis the Court of Criminal Appeals vacated the judgment of the Dallas Court of Appeals and held that an appellant was entitled to a review of the evidence to determine whether it was factually sufficient to sustain his conviction. The Court held that when a court of appeals determines that the verdict is against the great weight of the presented evidence as to be clearly wrong and unjust, it must reverse the verdict and remand for a new trial.

Under this standard we are not bound to view the evidence in the light most favorable to the prosecution, but may consider the evidence of defense witnesses and the existence of alternative hypotheses.

Officer Wilhelm of the City of Sachse, on September 21, 1993, at about 10:30 p.m., observed a Toyota fail to come to a complete stop at a stop sign. He activated his overhead lights, followed the Toyota and pulled it over. He testified he smelled a strong odor of alcoholic beverage on Appellant; that Appellant fell to the ground when he administered a balance test; that he formed the opinion that Appellant's mental faculties were a little impaired; and that appellant did not have the use of his physical faculties at all, because he had been drinking.

Office Wilhelm placed Appellant under arrest for driving while intoxicated and transported him to the Sachse booking facility where he was videotaped. The videotape was introduced into evidence.

Appellant testified he was 47 years old; served two terms in Viet Nam; suffered an injury in 1981 resulting in a rod being inserted into the top of his leg and a plate in the bottom of his leg; as a result his balance is bad; that because of bone grafts, the more tired he is, the worse his leg is; that his brother was killed a few days before and was buried the day before his arrest; that he had gone without sleep; that between 4:30 p.m. and 10:30 p.m. he had consumed five beers, but he was not intoxicated.

A person is intoxicated when he is without the normal use of his mental or physical faculties by reason of the introduction of alcohol. Daricek v. State, 875 S.W.2d (Tex. App. Austin 1994, pet. ref'd). Officer Wilhelm thought Appellant "a little impaired" mentally, and "impaired" physically when he was arrested.

A rod had been inserted into and remains in the top of Appellant's leg and a plate in the bottom of it. The rod and plate affected his balance. Appellant had not slept but little in the prior days due to his brother's death, and his burial the day before the arrest.

Appellant testified that his physical impairment was not due to his consumption of alcohol, but rather to his being very tired and to his physical disability. The videotape does not show that Appellant was mentally or physically impaired.

We hold the evidence factually insufficient to show that Appellant was mentally or physically impaired by reason of alcohol; that his conviction was contrary to the great weight of the evidence and was unfair.

Appellant's contention and point one is sustained. The judgment is reversed and the cause remanded for a new trial.

FRANK G. McDONALD

Chief Justice

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed April 3, 1996

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