John Macario Salazar v. The State of Texas--Appeal from 22nd District Court of Hays County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00386-CR
John Macario Salazar, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR93-456, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of driving while intoxicated, third offense, and assessed punishment at imprisonment for four years and a $500 fine. Act of May 27, 1983, 68th Leg. R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (e), since amended and codified at Tex. Penal Code Ann. 49.04, 49.09). In two points of error, appellant contends the evidence does not support the conviction.

At 10:45 p.m. on October 1, 1993, San Marcos police officer Dan Misiaszek was driving south on Interstate 35 when he observed a vehicle approaching him from behind at a high rate of speed. Although the highway at this point had three southbound lanes, the left lane was closed to traffic due to construction and separated from the center lane (in which both the officer and the suspect were driving) by periodic barricades. As the suspect vehicle neared Misiaszek, it swerved between the barricades into the left lane. The vehicle, a brown station wagon, passed Misiaszek's patrol car, returned to the open lanes of traffic, crossed both the center and right lanes, and drove partially onto the right shoulder of the highway. Misiaszek followed the station wagon after it returned fully to the highway, clocking it at eighty-three miles-per-hour. The officer then turned on his emergency lights.

The driver of the station wagon, identified by Misiaszek as appellant, exited the vehicle after coming to a stop and ran into a field. Misiaszek followed appellant and, after a brief chase and struggle, succeeded in arresting him. The officer testified that appellant had a strong odor of alcoholic beverage about his person, that his speech was slurred, and that his eyes were red and bloodshot. In Misiaszek's opinion, appellant was "highly intoxicated."

That was also the opinion of San Marcos police officer Frank Calabrese, who transported appellant to the police station following his arrest. At the station, appellant was generally uncooperative, was unable to perform successfully the physical sobriety tests he attempted, and refused to give a breath sample. A videotape of appellant taken at the police station was admitted in evidence and played for the jury.

Appellant contends the evidence is legally insufficient to prove that he was intoxicated on the night in question. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant points out that no beverage containers were found in appellant's car and there is no evidence of the type or quantity of alcoholic beverage appellant consumed that night. We believe, however, that when the Jackson test is applied to the evidence that was introduced, it is more than sufficient to support a finding of intoxication. Point of error two is overruled.

Appellant also challenges the State's proof regarding the two previous DWI convictions alleged to enhance the present offense to a felony, Caldwell County cause number 89-281 and Hays County cause number 26,221. Certified copies of the judgments of conviction in those causes were introduced in evidence as State's exhibits four and five. Appellant contends the State failed to prove that he is the person convicted in those causes.

In reviewing the sufficiency of the evidence, we look at all the evidence adduced at both stages of the trial, and not just at that offered by the State at the guilt stage. DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985). During cross-examination at the punishment stage, appellant was asked, in reference to exhibits four and five, if he is "the same John Macario Salazar who was convicted of the offense of driving while intoxicated in each of those cases." Appellant answered, "Yes." Having so testified, appellant cannot complain that he was not identified as the person convicted of driving while intoxicated in cause numbers 89-281 and 26,221. See McGlothlin v. State, No. 022-94 (Tex. Crim. App. March 8, 1995); DeGarmo, 691 S.W.2d at 661 (defendant who admits guilt during testimony at punishment stage waives challenge to sufficiency of evidence). Point of error one is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: April 12, 1995

Do Not Publish