Jay Paul Head v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-028 CR ____________________

JAY PAUL HEAD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B 030701-R

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MEMORANDUM OPINION

A jury convicted appellant Jay Paul Head of three counts of child endangerment by driving while intoxicated, and the trial court sentenced him to two years of confinement in a state jail facility. See Tex. Pen. Code Ann. § 22.041(b), (c) (Vernon Supp. 2006). In this appeal, Head contends the evidence was legally and factually insufficient to support his conviction. We affirm.

The Evidence

Officer Robert Arnold of the Orange Police Department testified that on August 3, 2003, he was employed as a trooper for the Texas Department of Public Safety. At approximately midnight on that date, Officer Arnold was traveling south on Highway 87 near Bluebonnet Street when he observed a northbound vehicle traveling at seventy-five miles per hour in an area where the posted speed limit was forty-five miles per hour. Officer Arnold initiated a traffic stop. As Officer Arnold approached, he observed three children and an adult female inside the vehicle, and Head was at the wheel. All three children were under fifteen years of age.

When Officer Arnold began speaking to Head, he noticed the odor of an alcoholic beverage on Head's breath and two open beer cans in the front console of the vehicle. Officer Arnold also noticed that Head's eyes were red and glassy, and Head seemed unsteady on his feet. Furthermore, Officer Arnold observed that Head slurred his speech, and Head told Officer Arnold he had consumed six beers that day. Officer Arnold also noticed that Head was disoriented. At that point, Officer Arnold decided to conduct field sobriety tests, so he asked Head to perform the horizontal gaze nystagmus, walk and turn, and the one-leg stand tests.

During the horizontal gaze nystagmus test, both of Head's eyes showed involuntary jerking, lack of smooth pursuit, and nystagmus prior to forty-five degrees. When Officer Arnold administered the walk and turn test, Head did not perform the turn properly, but presented no other signs of intoxication. When Officer Arnold administered the one-leg stand test, Head swayed while balancing and could not properly hold up his foot. Officer Arnold also asked Head to blow into a portable intoxylizer, and the results exceeded the legal limit. Based upon Head's performance during the field sobriety tests, Officer Arnold felt that Head had "loss of both his mental and physical skills," and he placed Head under arrest. Officer Arnold testified that Head was driving while intoxicated, and Head thereby placed the three children in imminent danger of death, bodily injury, or physical or mental impairment. When Head arrived at the intoxylizer room of the Orange County Jail, he refused to provide a breath sample and refused to participate in sobriety tests. Officer Arnold made a videotape of Head in the intoxylizer room, and the State introduced the videotape into evidence at trial. Officer Arnold testified that he was unable to produce the videotape of the traffic stop because "there was a discrepancy between DPS and the District Attorney's Office on how many tapes we should submit."

Officer David Vaughn, a patrol officer with the Orange Police Department, testified that he saw Officer Arnold conducting a traffic stop of Head and stopped to render assistance. Officer Vaughn saw three children, ages seven, four, and four months, in the back seat of Head's vehicle, and he saw beer inside the vehicle. Officer Vaughn noticed that Head swayed back and forth, Head's speech was slurred, and Head's breath smelled strongly of an alcoholic beverage. Officer Vaughn also believed Head "really didn't know where he was at." Officer Vaughn was not present when Officer Arnold administered the field sobriety tests to Head. Officer Vaughn testified that he believed Head was intoxicated and had lost the normal use of his mental or physical faculties. Officer Vaughn further testified that Head placed the three children in imminent danger of death, bodily injury, or physical or mental impairment.

Head testified that on the night Officer Arnold pulled him over, he was returning to Vidor after spending the day at Crystal Beach. Head decided to return home rather than spend the night at the beach because one of the children had fever. According to Head, he was sitting at a red light when he realized he was going to be stopped by the authorities. After Head parked his vehicle, Officer Arnold told him to exit the van, and Head walked over to the officer's car. Head told Officer Arnold that he had consumed "a few beers." According to Head, Officer Arnold "asked me if I would do a field sobriety test, because I admitted that I had drank a couple of beers that day." Officer Arnold then administered the horizontal gaze nystagmus, the one-legged stand, and the walk and return tests. Head testified that he was barefoot, and he stepped on a pebble during the one-legged stand test. Head further testified that it was difficult for him to speak clearly because he was missing several of his upper teeth.

Standards of Review

In reviewing an issue of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003)(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). When addressing an issue of factual sufficiency, the appellate court asks 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." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). An appellate court "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence and will reverse the fact finder's determination only to arrest the occurrence of a manifest injustice." Swearingen, 101 S.W.3d at 97. When reviewing the sufficiency of the evidence after a jury trial, we consider all of the evidence presented, whether properly or improperly admitted. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). It is the sole province of the jury to determine the credibility of witnesses and to weigh contradictory testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

Analysis

Officer Arnold testified that Head was driving a vehicle at an excessive rate of speed in which three children under the age of fifteen were passengers. Officer Arnold also testified that when he stopped Head, he noticed that Head's breath smelled of an alcoholic beverage, Head's eyes were red and glassy, Head's speech was slurred, Head seemed unsteady on his feet, and Head seemed disoriented. Officer Arnold also saw beer containers in the vehicle. Head told Officer Arnold that he had consumed six beers. When Officer Arnold conducted field sobriety tests, Head showed several signs of intoxication, and when Head blew into a portable breath testing machine, the results exceeded the legal limit. Officer Arnold testified that Head was driving while intoxicated, Head's mental and physical skills were impaired, and Head thereby placed the three children in imminent danger of death, bodily injury, or physical or mental impairment.

Officer Vaughn testified that Head swayed back and forth, Head's speech was slurred, Head's breath smelled of an alcoholic beverage, and Head appeared to be disoriented. Officer Vaughn also saw beer in the vehicle. Furthermore, Officer Vaughn testified that he believed Head was intoxicated, had lost the normal use of his mental or physical faculties, and had placed the three children in imminent danger of death, bodily injury, or physical or mental impairment.

Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Head was driving while intoxicated, and that his conduct of driving at an excessive rate of speed while intoxicated endangered the three children who were passengers in Head's vehicle. The evidence is legally sufficient to support the verdict. Furthermore, a neutral review of the entire record does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, nor does it demonstrate that the proof of guilt is greatly outweighed by contrary proof. The evidence is factually sufficient to support the verdict. We overrule Head's sole issue and affirm the trial court's judgment.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on October 26, 2006

Opinion Delivered December 20, 2006

Do not publish

Before Gaultney, Kreger and Horton, JJ.

DISSENTING OPINION

The evidence in this case does not show that the children were injured or that the children were in imminent danger of injury despite the fact that Head, while under the influence of alcohol, drove at a speed of seventy-five miles per hour in a forty-five miles per hour zone around midnight while in light traffic. The arresting officer testified that Head's speeding was the sole reason that he was stopped. Except for speeding, there was no testimony that Head drove erratically, was about to collide with any fixed or moving object, had nearly rear-ended any vehicle traveling in his lane, or had swerved or appeared about to swerve from the traveled portion of the roadway. The arresting officer testified that Head would not have been arrested had he not been intoxicated. Nevertheless, the State converts a straight-forward misdemeanor driving-under-the-influence case to one that carries the penalty of a state jail felony merely because children occupied Head's vehicle. ⁽¹⁾

In my opinion, based upon the evidence at the trial, Head's conduct was unlikely to result in injuries to any of the children absent evidence that his intoxication caused him to drive in a manner that, under the driving conditions at the time, made an accident imminent. Speeding while intoxicated with children in the car is unjustifiable and is now a State jail felony. However, the child endangerment statute under which Head was charged, in my opinion, requires that a conviction be based on proof of more than a potential danger. The danger must be imminent. While the proof of the imminence of the danger might be made with statistical evidence regarding the increased risk of driving while intoxicated, there was no statistical data offered at Head's trial.

The statute in issue, Section 22.041, requires that the State prove that the children were placed in imminent danger, but does not define the term "imminent." Tex. Pen. Code Ann. § 22.041(c)(Vernon 2003). "Imminent" is defined as: "ready to take place : near at hand : IMPENDING . . . : hanging threateningly over one's head : menacingly near . . . ." Webster's Third New International Dictionary 1130 (2002); see also Elder v. State, 993 S.W.2d 229, 230 (Tex. App.-San Antonio 1999, no pet.) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)). Driving under the influence of alcohol coupled with evidence of an imminent collision would be sufficient proof, but there is no such proof in this case.

The evidence of an imminent collision must be proven beyond a reasonable doubt by evidence, and a case where there is only an inference that driving under the influence or speeding generally increases the risk of an accident is, in my opinion, insufficient to meet the State's burden. See generally Millslagle v. State, 81 S.W.3d 895 (Tex. App.-Austin 2002, pet. ref'd) (holding that drug ingestion and intoxication standing alone were insufficient evidence of imminent danger under this provision). Since in this case the State failed to prove beyond a reasonable doubt that the danger of injuring the children was imminent, I would reverse Head's convictions. Because the majority holds otherwise, I dissent.

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HOLLIS HORTON

Justice

Dissent Delivered

December 20, 2006

1. Head's offense occurred on August 3, 2003, prior to the enactment of Section 49.045 of the Penal Code. Tex. Pen. Code Ann. § 49.045 (Vernon Supp. 2006). Section 49.045 made driving while intoxicated with a child as a passenger a state jail felony. If the majority is correct, the new provision was unnecessary as the State could have prosecuted any driving while intoxicated where a child was a passenger under Section 22.041(c) of the Penal Code. Compare Tex. Pen. Code Ann. § 22.041(c) with Tex. Pen. Code Ann. § 49.045.