Shaw, James Edward, Jr. v. State ( 2015 )

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ORIGINAL
COURT OF CRIMB^AL APPEALS
OCT 23 2015
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
No. 11-13-00241-CR
JAMES EDWARD SHAW JR..APPELLANT
V.
THE STATE OF TEXAS
[PETITION FOR DISCRETIONARY REVIEWl
FILED IN
COURT OF CRIMINAL APPEALS
OCT 23 2015
Abel Acosta, Clerk
(l)
LIST OF PARTIES
Presiding Judge Honorable Michael Moore
Appellant James Edward Shaw Jr
Appellee The State of Texas
Attorney for State District attorney Michael
(Trial Only) K. Burns
Attorney for Appellant Robert Floyd Watson
(Trial Only)
Attorney for Appellant Chad Cannon
(Appeal Only)
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R?Pt*)Axy , . . . . . . . . 948 S.W.2d 377 (Tex. App.-HoustonT14th Dist.] iq
1997)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2008) 7
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.-2007) 9
Dumas v. State, 812 S.W.2d 611 (Tex. App.-Dallas 1991, pet. ref'd).7
Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994)
Green v. State, 350 S.W.3d 617 (Tex. App.-Houston Tl4th Dist.]2011)7,I
Jackson v. Virqinia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979) 8,9
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) 8
Salinas v. State, 163 S.W.3d 734 (Rex. Crim. App. 2005) 7
(iV;
STATEMENT REGARDING ORAL ARGUMENT
Oral araument to the statements that DPS Trooper Blue made that
did not occur and Vidio show the facts: the followinq statements
was made.
a). "He" Trooper Blue ask appellant to exit vehicle and was
place in Blue patrol car.
VIDIO SHOWS THIS DID NOT TAKE PLACE.
b). Blue stated he administered the one-leq stand. Appellant
told Trooper Blue he cannot do the one-leq stand because
of back promblem, Therefore one-leg stand was not administer
ed.
c). Blue testified he had appellant blow into the PBT.
"APPELLANT DID NOT HAVE ANY RESULTS BECAUSE APPELLANT DID
NOT HAVE A BLOW IN THE PBT.
STATEMENT OF THE CASE
Appellant, James Edward Shaw, Jr., was convicted on his not
guilty plea for the offense of Driving while Intoxicated-3rd
or more. Appellant waived his riqht to a Jury Trial and the
court assessed a sentence of 40 years confinement in the Institu
tional Division of Texas Department of Criminal Justice, alonq
with a fine of $10,000.00.(CR 44). The Trial was conducted in
the 29th Judicial District Court of Palo Pinto county, Texas,
The Honorable Michael Moore, Judqe Presidinq, Appellant filed
his notice of appeal in the Eleventh court of Appeals.
rWS
STATEMENT OF PROCEDURAL HISTORY
Auqust 6 2015, Opinion and Judement made in the 11th court of
Appeals.
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GROUNDS FOR REVIEW
I» THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE TRIAL
COURT'S VERDICT AND SENTENCE.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, The Appellant pravs that this
Honorable court reversed and remanded for a new trial, or in
the alternative a iudgment of acquittal be entered, or the case
be remanded for a new sentencing hearing,
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4
fiv-V T1
1 lTH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
James Edward Shaw Jr., * From the 29th District Court
of Palo Pinto County,
Trial Court No. 14957.
Vs. No. 11-13-00241-CR * August 6, 2015
The State of Texas, * Memorandum Opinion by Bailey, J.
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this court's
opinion, the judgment of the trial court is in all things affirmed.
(70
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EftfP*>oQz^J
vV"K-^..---..: >. & theiaj|plicant/^titioner(circle one) and
being presently incarcerated in \\^Yx\ ~ \L.Q\\ teNjv ^y^\\ , declare under penalty of
perjurythat, according to my belief the facts stated in the above application are true andcpifect.
Signed on \Q ~ ^Vp 20 1^5 .
attu-eiofAppfica^Petitioner (circle one)
«t
443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.
App.—Eastland 2010, pet. ref d). Irrespective of Appellant's concession that the
evidence was legally sufficient, we will review the sufficiency of the evidence
supporting his conviction to determine if it is sufficient under Jackson.
Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting
a sufficiency review, we consider all the evidence admitted at trial, including pieces
of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). In conducting a sufficiency review, we defer to the factfinder's role as
the sole judge of the witnesses' credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution and
defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
A person commits the offense of driving while intoxicated "if the person is
intoxicated while operating a motor vehicle in a public place." Tex. Penal Code
• Ann. § 49.04(a) (West Supp. 2014). Appellant attacks only the element of
intoxication. Under the Texas DWI statute, intoxication may be proven in either of
two ways: (1) loss of normal use of mental or physical faculties or (2) alcohol
concentration in the blood, breath, or urine of 0.08 or more. Id. § 49.01(2) (West
3
2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). The first
definition is the "impairment" theory, while the second is the "per se" theory.
Kirsch, 306 S.W.3d at 743. We are only concerned with the impairment theory in
this appeal because a specimen was not obtained from Appellant for testing.
Circumstantial evidence may prove that a person has lost the normal use of his
mental or physical faculties by reason of introduction of a controlled substance or
drug into his body. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App.
1973). For purposes of the DWI statute, proving an exact intoxicant is not an
element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).
Appellant premises his evidentiary challenge to the element of intoxication on
a number of arguments. He initially contends that the malfunction ofthe intoxilyzer
testing machine deprived him of the opportunity to disprove that he was intoxicated.
He also asserts that he informed Trooper Blue that he had back problems and a
speech impediment and that these conditions provided an explanation for the matters
that Trooper Blue observed about his physical condition. Appellant additionally
contends that the video recording of his encounter with Trooper Blue did not support
the finding that he was intoxicated.
Trooper Blue testified that he saw Appellant driving without his vehicle's
taillights on after dark. When Trooper Blue stopped Appellant, he smelled "the odor
of alcohol coming from the truck," and Trooper Blue noticed that Appellant had
bloodshot eyes and that his speech was "real thick-tongued and slurred." Trooper
Blue asked Appellant if he had had anything to drink, and Appellant said that he had
drunk "two Natural Lights."
Trooper Blue then conducted three field sobriety tests. In this regard,
Trooper Blue has been a trooper since 2006, and he testified that he had been trained
to conduct standard field sobriety tests. Trooper Blue additionally testified that he
has attended an advanced DWI class and that he is also certified as a drug recognition
4
expert. He also testified that he has made "[m]any" arrests for DWI and that he has
had "[m]any" occasions to observe people whom he believed to be intoxicated.
Trooper Blue testified that Appellant failed all three tests. Based on his
observations, Trooper Blue concluded that Appellant was intoxicated while
operating a motor vehicle. Trooper Blue's testimony is probative evidence of
intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]
1979) (as a general rule, the testimony of an officer that a person is intoxicated
provides sufficient evidence to establish the element of intoxication for the offense
ofDWI); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,
pet. ref d) (same); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref d) (same).
With respect to Appellant's contention that he was denied a chance to give a
breath sample to disprove that he was intoxicated, it is within the officer's discretion
to determine what method to use when testing for intoxication. Tex. Transp. Code
Ann. § 724.012(c) (West 2011); Aguirre v. State, 948 S.W.2d 377, 379-80 (Tex.
App.—Houston [14th Dist.] 1997, pet. ref d); Drapkin v. State, 781 S.W.2d 710, 712
(Tex. App.—Texarkana 1989, pet. refd). It is significant to note that Trooper.Blue
offered Appellant the opportunity to provide a blood specimen when he determined
that a breath test was not available and that Appellant declined the opportunity.
The video recording from Trooper Blue's dashcam was introduced into
evidence. We have reviewed the video in our review of the record. We conclude
that the video supports Trooper Blue's trial testimony. Appellant's perception of the
video and his alleged physical problems were matters available for the trial court to
consider in determining Appellant's guilt/innocence. Under the applicable standard
of review, we presume that the factfinder resolved Appellant's perceived
deficiencies in the evidence in favor of the verdict, and we defer to that resolution.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We conclude that the
5
evidence is sufficient to support Appellant's conviction because a rational trier of
fact could have found the elements of the offense beyond a reasonable doubt based
upon Trooper Blue's testimony. We overrule Appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
August 6, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.