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

NO. 12-06-00254-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANIEL SHELTON, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #3

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Daniel Shelton appeals from his conviction for driving while intoxicated. In one issue, he argues that the evidence was factually insufficient to sustain the conviction. The State did not file a brief. We affirm.

Background

Appellant was driving a truck pulling an empty boat trailer when he lost control of the vehicle and wrecked. The trooper investigating the wreck concluded that Appellant lost control because he traveled over a railroad crossing at a high rate of speed, which caused the empty trailer to bounce and ultimately caused Appellant to lose control of his truck. The truck rolled from end to end and suffered significant damage.

Appellant told the trooper that he was not injured, and he was able to discuss the wreck with the trooper. Upon completing his investigation, the trooper concluded that Appellant had been intoxicated when he operated the vehicle, and arrested him for driving while intoxicated.

Appellant was charged with the misdemeanor offense of driving while intoxicated. He pleaded not guilty, and a jury trial was held. The jury found him guilty. After a separate punishment hearing, the jury assessed punishment of ninety days of confinement and a fine of $2,000. The jury recommended that the jail portion of the sentence and $1,500 of the fine be suspended and Appellant be placed on community supervision. This appeal followed.

Factual Sufficiency of the Evidence

In his sole issue, Appellant argues that the evidence is factually insufficient to support his conviction.

Analysis

We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414 15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia1standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury s role as the judge of the weight and credibility of witness testimony. SeeSantellan, 939 S.W.2d at 164.

As charged, the State was required to prove that Appellant operated a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann. 49.04(a) (Vernon 2006).

Analysis

  In his brief, Appellant lists fifteen facts that could support the verdict. They are:

1) Appellant admitted driving a vehicle on a public road.

2) Appellant admitted to drinking two or three beers before the accident occurred.

3) Appellant had the odor of alcohol on his body.

4) Appellant had red and watery eyes.

5) Appellant was unsteady on his feet.

6) Appellant was confused about the direction he had been traveling before the accident.

7) Appellant misspoke when reciting a telephone number (his own).

8) Appellant stalled briefly before complying with instructions from law enforcement.

9) Appellant s vehicle carried the odor of alcohol.

10) The odor of alcohol possibly came from Appellant s breath.

11) Appellant was disrespectful to a law enforcement officer.

12) A law enforcement officer believed Appellant had been driving while intoxicated.

13) Appellant s speech was slurred.

14) Appellant had operated his vehicle at a high rate of speed prior to the accident.

15) Appellant declined breath and field sobriety tests.

There was also the testimony of one trooper that Appellant said, in refusing to take a field sobriety test, that he would be arrested if he took it, and another trooper s testimony that Appellant s wife, who arrived after the wreck, said Appellant was intoxicated. Furthermore, some of the interaction between the troopers and Appellant was videotaped, and the video was played for the jury.

Appellant argues that each of the evidentiary facts listed in his brief is contradicted by the evidence or subject to qualification justifying reversal. Specifically, Appellant argues that his general disorientation, facts 4, 5, 6, 7, 11, and 13, can be attributed to the fact that he had just been in a traffic accident. He argues that the odor of alcohol, facts 3, 9, and 10, is consistent with fact 2, that he had consumed a modest amount of alcohol. Furthermore, he argues that the slurred speech and red, watery eyes were not proof of intoxication and could be explained in another way. Last, he argues that testimony by his mother and his wife contradicted the verdict. Appellant s mother testified that he was not impaired when he left the place he had been with her prior to the wreck, and Appellant s wife testified that he was not intoxicated and that his eyes were not red and watery.

The trooper testified that people who have been in automobile accidents can be disoriented by the experience. The trooper also testified that Appellant said he was not seriously injured and that, based on his experience with drivers who had been in wrecks, he attributed Appellant s disorientation to intoxication.

The testimony of Appellant s mother and wife did contradict the jury s verdict. But the determination of the weight to be afforded their testimony is a measuring well suited to a petit jury and not well suited to an appellate review of the record. Furthermore, the jury was able to make judgments about the credibility of the troopers who worked on the case and to view the video, which contained some of Appellant s interaction with the troopers. The jury credited the testimony of the troopers, and must have discounted the testimony of Appellant s family members or otherwise reconciled it with the verdict. Appellant essentially asks us to reweigh the evidence and substitute our judgment for that of the jury. This we cannot do. See Cain v. State, 958 S.W.2d 404, 407 08 (Tex. Crim. App. 1997) (en banc). What we are called upon to do is to act, to a very limited degree . . . in the capacity of a so-called thirteenth juror. Watson, 204 S.W.3d at 417. We may only do this when the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury s verdict. . . . Id.

In our judgment, the jury s reconciliation of the evidence was reasonable, and we are not persuaded that the great weight of the evidence is against the verdict, or that the verdict is clearly wrong or manifestly unjust. We overrule Appellant s sole issue.

Disposition

Having overruled Appellant s sole issue, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered October 11, 2007.

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

(DO NOT PUBLISH)

1 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)