Zachary Dean Derrick v. State ( 2015 )

AFFIRM; and Opinion Filed May 8, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00802-CR
ZACHARY DEAN DERRICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR13-0331
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Fillmore
A jury convicted Zachary Dean Derrick of misdemeanor driving while intoxicated
(DWI). The trial court assessed punishment of 180 days’ confinement in the Rockwall County
Jail and a fine of $1,000, but suspended the period of confinement and placed Derrick on
community supervision for twenty-four months. Derrick contends the evidence was insufficient
to support the conviction. We affirm the trial court’s judgment.
Background
The only witness at trial was Texas Department of Public Safety Trooper Jacob Farley.
By the time of trial, Farley had been a state trooper for eleven years; he had approximately four
additional years of law enforcement experience as a military police officer in the United States
Air Force. He was trained both while in the Air Force and after becoming a state trooper on how
to conduct standardized field sobriety tests (SFSTs) and was certified to conduct SFSTs. In
October 2013, he was also certified as an SFST instructor. Farley testified in detail about how to
conduct SFTSs and interpret a person’s performance of SFSTs. In Farley’s opinion, SFSTs are
extremely reliable indicators of intoxication.
At approximately 2:15 a.m. on February 23, 2013, Farley was driving on Interstate 30
when he saw a car, later determined to be driven by Derrick, merging onto the highway at a
“very high rate of speed.” Farley accelerated to ninety-five miles per hour while attempting to
“catch up” to the car. Farley’s Stalker radar indicated the car was traveling at eighty-nine miles
per hour and continued to accelerate to 103 miles per hour. Other than speeding, Farley did not
see Derrick commit a traffic violation.
Because the car was exceeding the posted speed limit, Farley initiated a traffic stop.
Derrick exited the highway and stopped at a stop sign. Because the two cars were parked in a
lane of traffic and it was not a safe location, Farley used his public address system to instruct
Derrick to move forward into the driveway of The Harbor. Derrick complied with Farley’s
instructions.
When Farley approached the driver’s side window of the car, the odor of alcohol
emanated from the vehicle. Derrick’s eyes appeared to be bloodshot and glossy. Derrick also
appeared to be very relaxed, somewhat dazed, and a little confused. Farley saw Derrick’s
driver’s license and a money clip on the front passenger seat of the car. Farley requested that
Derrick give him the driver’s license. Derrick looked for the driver’s license in the money clip,
and Farley had to remind him the license was on the front passenger’s seat.
Farley requested that Derrick get out of the car and asked Derrick why he was speeding.
As the two were talking, Farley noticed Derrick was swaying back and forth. Farley also
determined that the specific source of the odor of alcohol was Derrick’s body and breath.
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Derrick told Farley that he had gone to the Flying Saucer and Weekends and was on his way
home. Derrick stated that, since approximately 7:30 p.m., he had drunk three beers and a Scotch.
Farley administered three SFSTs to Derrick. On the horizontal gaze nystagmus (HGN)
test, Derrick exhibited all six clues that he was intoxicated. Farley also noted that Derrick
swayed during the test. On the walk-and-turn test, Derrick exhibited four of eight possible clues,
failing to maintain balance during instructions, failing to walk heel to toe, stepping off the line,
and turning improperly. Exhibiting two clues on the walk-and-turn test is sufficient to indicate
intoxication. On the one-leg stand test, Derrick exhibited only one of four clues, swaying while
balancing. One clue on the one-leg stand test is not sufficient to indicate intoxication. A
recording of the stop, including Derrick’s performance of the SFSTs, was played for the jury.
Farley agreed that the interpretation of a person’s performance on SFSTs is subjective,
and an officer could make a mistake. However, in his opinion, Derrick did not have the normal
use of his mental and physical faculties due to the introduction of alcohol into his body.
Although Farley agreed it was not “the most extreme case of intoxication” he had ever seen, he
believed, based on the totality of the circumstances, that Derrick was intoxicated.
Farley arrested Derrick for DWI and took him to the intoxilyzer room at the jail. Farley
read Derrick the warnings on the “DIC-24” form, which, among other things, state the refusal to
give a specimen of breath or blood could be used against Derrick in a prosecution and could
subject him to a six-month suspension of his driver’s license. 1 Derrick refused to provide the
breath sample requested by Farley. A recording from the intoxilyzer room was played for the
jury.
1
Section 724.015 of the transportation code requires an officer to provide certain information orally and in writing before requesting a
specimen of a person’s breath or blood for analysis to determine alcohol concentration. TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2014).
The DIC-24 is the Texas Department of Public Safety’s standard form containing the written warnings required by section 724.015. See Martin
v. Dep’t of Pub. Safety, 964 S.W.2d 772, 773 (Tex. App.—Austin 1998, no pet.).
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Sufficiency of the Evidence
In his only issue on appeal, Derrick contends the evidence is insufficient to support the
jury’s finding he was intoxicated. We review the sufficiency of the evidence under the standard
set out in Jackson v. Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex.
Crim. App. 2013). We examine all the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This
standard recognizes “the responsibility of the trier of fact fairly 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; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim.
App. 2011). As the fact finder, the jury is entitled to judge the credibility of the witnesses, and
can choose to believe all, some, or none of the testimony presented by the parties. Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012) (“The factfinder exclusively determines the weight and credibility of the
evidence.”).
We defer to the jury’s determinations of credibility, and may not substitute our judgment
for that of the jury. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex.
Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting
legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our
judgment for that of the jury”). When there is conflicting evidence, we must presume the
factfinder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443
U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial
evidence is as probative as direct evidence and, alone, can be sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if “the
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inferences necessary to establish guilt are reasonable based upon the cumulative force of all the
evidence when considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at 903.
To obtain a conviction for DWI, the State was required to prove beyond a reasonable
doubt that Derrick was intoxicated while operating a motor vehicle in a public place. See TEX.
PENAL CODE ANN. § 49.04(a) (West Supp. 2014). As charged in this case, a person is intoxicated
if he does not have the normal use of his mental or physical faculties due to the introduction of
alcohol into the body. TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2011). Evidence that
logically raises an inference of intoxication includes, among other things, stumbling, swaying,
slurring or mumbling words, an inability to perform SFSTs or follow directions, bloodshot eyes,
any admissions concerning what, when and how much the defendant had been drinking, and the
odor of alcohol on the person or the breath. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim.
App. 2010); Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985). Further, a
person’s refusal to submit to a breath test can support the inference that he believed he would fail
the test because he thought he was intoxicated. Gaddis v. State, 753 S.W.2d 396, 399 (Tex.
Crim. App. 1988); Thomas v. State, 990 S.W.2d 858, 860 (Tex. App.—Dallas 1999, no pet.); see
also TEX. TRANSP. CODE ANN. § 724.061 (West 2011) (refusal of request to submit to breath test
admissible at trial); Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (evidence of
refusal to submit to breath test “tends to show consciousness of guilt”). Finally, an experienced
officer’s opinion, based on observed facts, that a person was intoxicated can be sufficient to
prove the elements of intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel
Op.] 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.—Dallas 1987, pet. ref’d); Kiffe v.
State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Farley initiated a traffic stop after determining Derrick was driving 103 miles per hour in
an area with a posted speed limit of sixty miles per hour. Derrick exited the highway, and
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stopped his car at a stop sign. Because Farley did not believe it was safe to conduct a traffic stop
in a lane of traffic, he instructed Derrick to move his car forward. When Farley approached
Derrick’s car, he noticed the odor of alcohol emanating from the vehicle. Derrick’s eyes were
bloodshot and glossy, and Derrick appeared relaxed, confused, and a little dazed. Derrick had
difficulty finding his driver’s license even though Farley could see it on the front passenger seat
of the vehicle.
After Derrick got out of the car, Farley could tell the specific source of the odor of
alcohol was Derrick’s body and breath. Derrick admitted to drinking three beers and one Scotch
since 7:30 p.m. Derrick swayed during his performance of the HGN test, and his performance
on the HGN and walk-and-turn tests indicated he was intoxicated. In Farley’s opinion, based on
the totality of the circumstances, Derrick had lost the normal use of his mental and physical
faculties due to the introduction of alcohol into his body. After he was arrested for DWI, Derrick
refused to provide a sample of his breath.
Derrick argues the evidence was insufficient to support a finding he was intoxicated
because the SFSTs are subjective in their interpretation and capable of misinterpretation; he
passed the one-leg stand test; he was in control of his vehicle; he properly responded to Farley’s
requests that he stop and move his car; he properly got out of his car; and he was able to
comprehend and respond to Farley’s questions and instructions. However, the jury heard
Farley’s testimony and viewed the recordings of the traffic stop, including Derrick’s
performance of the SFSTs, and of the intoxilyzer room. “[R]econciliation of conflicts in the
evidence is within the exclusive province of the jury,” Wyatt v. State, 23 S.W.3d 18, 30 (Tex.
Crim. App. 2000) (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)), and
we may not substitute our opinion for that of the jury. Thornton, 425 S.W.3d at 303.
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Viewing the evidence in the light most favorable to the verdict, we conclude a rational
juror reasonably could find, based on all the evidence and the inferences that can be drawn from
the evidence, that Derrick was intoxicated See Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at
903.
We affirm the trial court’s judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140802F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ZACHARY DEAN DERRICK, Appellant On Appeal from the County Court at Law,
Rockwall County, Texas,
No. 05-14-00802-CR V. Trial Court Cause No. CR13-0331.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Bridges and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of May, 2015.
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