Richard Stevens Wells v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-01-219 CR NO. 09-01-220 CR ____________________

RICHARD STEVENS WELLS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 1 Montgomery County, Texas Trial Court Cause Nos. 00-158826 and 00-158827

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O P I N I O N

   A jury convicted appellant Richard Stevens Wells of two misdemeanor offenses: driving while intoxicated and failure to stop and give information. See Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a), (b) (Vernon Supp. 2002); Tex. Transp. Code Ann. §§ 550.022, 550.023 (Vernon 1999). The trial court assessed fines of $500 (failure to stop) and $800 (DWI), a $250 restitution payment in the failure to stop conviction, and county jail sentences of 180 days for each offense. The court suspended the imposition of the jail sentences and placed Wells on community supervision. Both offenses arose out of a series of events on July 30, 2000, and, though under separate indictments, the offenses were tried together. We consolidate Wells' two appeals into a single opinion.

Factual Sufficiency

In each appeal Wells raises a single issue -- factual insufficiency of the evidence to support the conviction. In a factual sufficiency review, the court looks at all the evidence in a neutral light and sets aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (quoting Clewis v. State, 922 S.W.2d 126, 129-30 (Tex. 1996). Since the appellate court does not substitute its own judgment for that of the fact finder and must be appropriately deferential, our evaluation should not intrude substantially on the jury's role as the sole judge of the weight and credibility of witness testimony. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Factual Background

In the early morning hours of July 30, 2000, Wells was driving a blue Volkswagen Beetle on I-45 when he sideswiped Zachary Retorico's Tahoe on the front passenger side. Wells did not stop. In an attempt to find out Wells' license number, Retorico began following the Beetle while one of the passengers in Retorico's vehicle called 9-1-1. One passenger copied down the license number. Retorico testified he observed Wells exit the freeway and continue at high speeds through residential areas. He also saw Wells run stop lights and stop signs and drive over front lawns, across medians, and into oncoming traffic. At trial, Matt Frary, a passenger in Retorico's car, identified the defendant Wells as being the man driving the Volkswagen that night.

Wells' account, which the jury heard and observed on the videotape, was different. Though initially denying he hit the other vehicle, Wells ultimately acknowledged he "felt a little something." He claimed the other car hit him and aggressively chased him. Because of the other driver's aggressive pursuit, Wells indicated he did not drive to his home but instead attempted to elude the driver. He acknowledged he did not stop when the impact occurred; his stated intention was to report the incident later.

Responding to a dispatch call on a "hit and run" incident, Officer Gary Sharpen located the vehicle that matched the license plate number given him by the dispatcher. While stopping the vehicle, he did not observe any traffic violations or weaving by the Volkswagen. Wells pulled over when the officer's emergency lights were activated, and he had no difficulty in locating his driver's license and giving it to the officer. Had the opposite been true, Sharpen felt there would have been indicia of intoxication present. Sharpen also indicated Wells was not belligerent. The officer noted the Beetle was damaged on the left side. Sharpen detained Wells until Trooper Miller of the Texas Department of Public Safety arrived at the scene, along with Retorico and his passengers in their vehicle. When Miller arrived, Sharpen alerted Miller to the possibility of an intoxicated driver; Sharpen had detected alcohol on Wells' breath and noticed Wells' red, watery eyes.

Trooper Miller testified he had received training in the detection of intoxicated drivers. As part of his investigation, Miller asked Wells if he had been drinking. Wells said no. Miller testified Wells "had the odor of alcoholic beverage that was strong on his breath, his eyes were red and watery, his balance was not falling, but it was a bit wobbly, unsure." He also took note of Wells' inconsistent statements -- the denial of any impact and then the admission of a slight impact, Wells' admission of his failure to stop, and, in Miller's view, Wells' limited recollection of the events that night. Miller also felt Wells slurred the road name. Based on Miller's observations, he decided to administer field sobriety tests to Wells: the Horizontal Gaze Nystagmus, walk and turn, one leg stand, and finger dexterity tests. As a result of the events that night, Wells was charged with both DWI and failure to stop.

Failure to Stop

Texas law provides that a person involved in an accident resulting only in damage to a vehicle driven or attended by another person shall (1) immediately stop the vehicle at the scene of the accident or as close as possible to the scene of the accident without obstructing traffic more than is necessary; (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and (3) remain at the scene of the accident until the operator complies with the requirements of Section 550.023. See Tex. Transp. Code Ann. § 550.022 (Vernon 1999). Under Section 550.023, the vehicle operator is required to give, along with other information, his name and address and the name of his liability insurance carrier. See Tex. Transp. Code Ann. § 550.023 (Vernon 1999).

Wells challenges the "failure to stop" conviction because he claims the eyewitness identification of him as the driver of the Beetle is too "tenuous." Wells contends it "is not clear from the record whether Mr. Wells was driving the Volkswagon Beetle when it hit Mr. Retorico's vehicle." At trial, however, Matt Frary identified Wells as the person driving the Beetle that night. In addition, Trooper Miller testified Wells told him at the scene of the investigation that he (Wells) had been in an accident and that he did not stop. The videotape viewed by the jury confirms the trooper's testimony. Wells told the trooper, "A Suburban tried to run me off the highway . . . . I felt a little something . . . . I tried to elude him."

Viewing the evidence in a neutral light, we conclude the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The identification of Wells as the Volkswagen driver, his admission on the tape that an impact had occurred, and his failure to stop do not amount to evidence that is so weak, standing alone, as to be insufficient to support the conviction. See Goodman v. State, 66 S.W.3d 283, 285-86 (Tex. Crim. App. 2001). In addition, the jury may choose to believe some testimony and disbelieve other testimony. Id. If there is enough credible testimony to support appellant's conviction, the conviction will stand. See id. Here, there is ample evidence to establish the identity of Wells as the driver who failed to stop and give information after he struck the Retorico vehicle with his car. Wells' issue in appeal number 09-01-220 is overruled.

Driving While Intoxicated

The elements of the offense of driving while intoxicated are (1) a person (2) is intoxicated (3) at the time of (4) operating (5) a motor vehicle (6) in a public place. See Purvis v. State, 4 S.W.3d 118, 120 (Tex. App.--Waco 1999, no pet.). Texas statute, in pertinent part, defines "intoxication" as follows:

(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[.]

. . . .

Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon Supp. 2002).

Wells challenges the DWI conviction on the grounds that his performance on the field sobriety tests and the video was "not indicative of a person being under the influence of an alcoholic beverage such that his mental and physical faculties were impaired." In particular, Wells states that Trooper Miller found only three clues on the HGN test. The record shows otherwise. Trooper Miller testified he found three clues for each eye -- six in all. The total possible under the HGN test is six. See Emerson v. State, 880 S.W.2d 759, 762 (Tex. Crim. App. 1994). As to the walk and turn test, Wells acknowledges only two clues are necessary, and the trooper found three. Miller indicated Wells could not walk heel-to-toe on the test and, though not unsteady to the point of falling down, he was wobbly and unsure of his balance. On the one leg stand test, Trooper Wells testified he found one clue. Based on his experience and training, he believed Wells was intoxicated.

In addition to the results of the field sobriety tests, the jury heard other evidence from Officer Sharpen, Trooper Miller, and the three young men in the Retorico vehicle concerning the events of that night. There was testimony concerning the odor of alcohol on Wells' breath; his watery, red eyes; slurred speech; refusal to submit to a breath test; inconsistent statements; failure to stop; and reckless driving. The jury also viewed the videotape. The videotape does not present indisputable visual evidence contradicting essential portions of Trooper Miller's testimony. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000). Giving due deference to the jury and the evidence in the record, we conclude the jury's verdict finding Wells guilty of DWI was not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Appellant's issue in cause number 09-01-219 CR is overruled.

The judgments are affirmed.

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DAVID B. GAULTNEY Justice

Submitted on October 14, 2002

Opinion Delivered November 6, 2002

Do Not Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.