Reginald Wickware v. The State of Texas--Appeal from County Court at Law No 3 of Smith County

NO. 12-03-00125-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REGINALD WICKWARE, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #3

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Following a jury trial, Reginald Wickware ( Appellant ) was convicted of misdemeanor driving while intoxicated and sentenced to one year of confinement in the Smith County Jail. Appellant now challenges the legal and factual sufficiency of the evidence to support the conviction. We affirm.

Background

Appellant was charged by information with driving and operating a motor vehicle while intoxicated in a public place in Smith County, Texas. The information alleged that he

. . . did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of these substances or any other substance into [Appellant s] body. . . .

The matter proceeded to a jury trial.

Texas Department of Public Safety Trooper Cody Mitcham ( Mitcham ) testified that at around midnight on November 23, 2002, he was parked on the shoulder of Highway 155, just north of the Lake Palestine bridge, on traffic patrol. As Appellant s vehicle passed by, Mitcham noticed that the license plate light was not visible. Mitcham stopped Appellant and got out of his vehicle to question Appellant from the driver s side window.

Prior to the stop, Mitcham had only observed Appellant driving for ten to fifteen seconds and his vehicle was not weaving. However, when Mitcham began questioning Appellant, he could smell alcohol emanating from inside the vehicle and also noticed that Appellant had bloodshot eyes. He did not see any open containers or anyone consuming an alcoholic beverage, but he did see an unopened beer box. Mitcham asked Appellant to exit the vehicle and consent to a battery of field sobriety tests. Appellant complied.

After Appellant exited the vehicle, Mitcham did not smell alcohol on Appellant s breath or clothing. Mitcham testified that Appellant made it to the rear of the vehicle fine, but that he could see a loss of balance when Appellant was walking. When Mitcham performed the horizontal gaze nystagmus (HGN) test, he noticed that Appellant had a lack of smooth pursuit in both eyes. // Mitcham also noticed that Appellant had distinct nystagmus at maximum deviation and that both of Appellant s eyes jerked prior to forty-five degrees. Mitcham said that the HGN test is indicative of alcohol, PCP, inhalants, and CNS (central nervous system) depressants. Based on the results of the HGN test, Mitcham believed that Appellant had exhibited six signs (three in each eye) of intoxication. Mitcham then tested Appellant s eyes for vertical nystagmus, which was present. Because of the vertical nystagmus, Mitcham believed Appellant was under the influence of drugs.

Mitcham next asked Appellant to stand with one foot in front of the other with his hands down by his side. He also asked him to perform the nine-step-walk-and turn test and to stand on one leg with the other foot off the ground and count out loud. Based on his observations of Appellant during these tests, Mitcham believed that Appellant had lost the normal use of his mental and physical faculties and should not have been operating a motor vehicle because he was intoxicated. Mitcham then arrested Appellant for driving while intoxicated.

Mitcham and Appellant reached the Smith County Jail at 1:30 a.m. When they arrived, Appellant consented to a breath test, which came back negative for the presence of alcohol in his blood. Appellant denied using any illegal drugs, but stated that he took some pain medication at 10:35 for his tooth but he didn t know what it [was]. At that time, Mitcham called Trooper Ricky White ( White ), a drug recognition expert, to come to the jail to examine Appellant.

White testified that he is an expert in determining whether someone is under the influence of a particular drug other than alcohol. He described the training he underwent to receive the certification and stated that he was taught how to identify seven categories of drugs: 1) CNS depressants, 2) CNS stimulants, 3) hallucinogens, 4) PCP, 5) narcotic analgesics, 6) inhalants, and 7) cannabis.

White s examination revealed that Appellant s pulse and temperature were within normal range, but his systolic blood pressure was a little bit low. White noticed Appellant had bloodshot eyes and was unsteady on his feet, but that his speech was not slurred. When he performed the lack of convergence test on Appellant, he did not find any indication of drug use. // He also did not find any nystagmus, but found a lack of smooth pursuit, which is one of six clues that Appellant had ingested a depressant. In response to White s questioning, Appellant stated that he had only taken Tylenol and Advil. He refused White s request for a urine sample.

Appellant exhibited eyelid tremors, a condition that occurs with marijuana use. His pupils were seven millimeters in diameter, whereas the normal range is three to 6.5 millimeters. White also noticed that Appellant had rebound dilation, meaning that [t]he pupil size goes from one size to another size and back. This is also an indicator for marijuana use. Based on his training and experience, White believed that Appellant s pupil size and rebound dilation demonstrated that there s obviously been marijuana on board and it s still effecting [sic] his clinical signs of the person.

White observed large blisters at the back of Appellant s tongue. This condition is consistent with someone who has smoked an unfiltered marijuana or tobacco cigarette, or unfiltered crack pipe or cocaine pipe because the heat from the burning material causes the taste buds on the back of the tongue to raise up and become easily visible. However, White did not know whether such a condition could be permanent and did not ask Appellant if he had been smoking unfiltered cigarettes.

When White asked Appellant to stand still with his head back and eyes closed, White noticed that Appellant was swaying about an inch side to side and forward to back. White said that when Appellant performed the nine-step-walk-and-turn test, he stopped during the pivot phase, which is a clue to intoxication.

White finished testing Appellant at 2:32 a.m. He found no direct evidence that Appellant had ingested any kind of medication or controlled substance. Based on his training, his experience, and his evaluation of Appellant at the jail, White formed the opinion that there was going to at least be marijuana in [Appellant s] system. White also believed that Appellant could have ingested a combination of drugs because the lack of smooth pursuit clue was inconsistent with marijuana use, but was consistent with the use of either a depressant, inhalant, PCP, or a combination of all four drugs.

The jury found Appellant guilty, and the court sentenced Appellant to one year of confinement in the Smith County Jail. This appeal followed.

Legal and Factual Sufficiency of the Evidence

Appellant argues that the evidence adduced at trial was legally and factually insufficient to support the State s contention that he was intoxicated on the morning of November 23.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

When reviewing the factual sufficiency of the evidence, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will reverse the fact finder s determination only if a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). This review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder s role as the sole judge of the weight and credibility to be given to the testimony of the witnesses. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

A person commits the offense of driving while intoxicated if he operates a vehicle while intoxicated in a public place. Tex. Pen. Code Ann. 49.04 (Vernon 2004). Intoxicated is defined as

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

Tex. Pen. Code Ann. 49.01(2)(A), (B) (Vernon 2004). A witness does not have to be an expert to testify that a person he observes is intoxicated by alcohol; therefore, lay opinion testimony by a police officer that a person is intoxicated is probative evidence that a person was drunk. Henderson v. State, 29 S.W.3d 616, 622 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). However, the rule as to whether a non-expert witness may testify whether a person is under the influence of drugs is different. Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973). The rationale is that intoxication by alcohol is of such common occurrence that its recognition requires no expertise. Id. When a person is under the influence of drugs, expert testimony must connect that person s symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle. Id. at 286. Nevertheless, in the absence of direct opinion testimony, such intoxication may be shown by circumstantial evidence. Id. at 285.

Analysis

The evidence in the instant case demonstrates that after Appellant submitted a breath specimen for analysis, both Mitcham and White ruled out any possibility that Appellant could have been intoxicated by reason of alcohol. Therefore, to survive a legal sufficiency challenge, the evidence must show that a rational trier of fact could have found that Appellant was intoxicated by reason of a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance.

White, a certified drug recognition expert, examined Appellant at the Smith County Jail and found that Appellant exhibited the following conditions that indicated drug use: 1) horizontal gaze nystagmus, 2) eyelid tremors, 3) rebound dilation of the pupils, 4) blisters on the back of the tongue, 5) bloodshot eyes, 6) unsteady feet, 7) swaying while his head was tilted back with his eyes closed, and 8) stopping during the pivot phase of the nine-step-walk-and-turn test. Taking all of these indicators into consideration, White believed that Appellant did not have the normal use of his mental and physical faculties by reason of the introduction of one or more substances into Appellant s body. Therefore, based upon White s testimony, a rational trier of fact could have found the essential elements of driving while intoxicated beyond a reasonable doubt.

With regard to the factual sufficiency of the evidence, the record demonstrates that Appellant did not introduce any evidence to show that he had not ingested any substances that would impair his mental and physical faculties on the morning of November 23. Our review of the record demonstrates that the blisters on the back of Appellant s tongue may have been caused by smoking an unfiltered tobacco cigarette as opposed to an unfiltered marijuana cigarette, that Appellant s vital signs were normal, and that he passed the lack of convergence test. However, the evidence supporting the jury s determination that Appellant was intoxicated is not so obviously weak, nor does the contrary evidence so clearly outweigh the supporting evidence, as to render Appellant s conviction clearly wrong and manifestly unjust.

Accordingly, Appellant s sole issue is overruled.

Conclusion

Based upon our review of the record, we hold that the evidence is legally and factually sufficient to support Appellant s conviction for driving while intoxicated. Therefore, the judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)