Robert Allen Kaleta, Sr. v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Robert Allen Kaleta, Sr.

Appellant         

Vs.                   No. 11-02-00142-CR - Appeal from Collin County

State of Texas

Appellee

The trial court found appellant guilty of the misdemeanor offense of driving while intoxicated and assessed his punishment at 30 days confinement and a $500 fine.  The confinement portion of the sentence was suspended, and appellant was placed on community supervision for 18 months.  We reverse and render a judgment of acquittal.

In one point of error, appellant contends that the evidence is both legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, we must 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 essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

On October 14, 2000, appellant and his wife, along with appellant=s son and stepson, returned home from a cruise.  In the early morning of October 15, 2000, appellant could not sleep.  Appellant often could not sleep as a result of discomfort and pain from injuries he received in a motorcycle wreck the previous month.  Appellant decided to Ago for a ride.@  Appellant testified that he had taken non-prescription Tylenol the morning of the 14th of October.  As he was driving on Parker Road in Collin County around 4:20 am on the 15th, appellant was stopped by Officer Roland Davis of the Plano Police Department.  Officer Davis was traveling westbound on Parker Road in Collin County.  Appellant was traveling eastbound on Parker Road with his bright lights on.  Officer Davis attempted to get appellant to dim his lights.  As he approached appellant=s vehicle, Officer Davis observed that appellant was on the wrong side of the road and traveling around 75 miles per hour in a 45 mile per hour speed zone.  Officer Davis testified that appellant:

[W]as coming right at me.  So what I did then was I had to move right off the roadway because on Parker Road, it=s not wide enough to get to the shoulder, whatever. So I actually had to go into the grassy field on the north side of Parker Road. 

Appellant testified that he was not driving on the wrong side of the road but that he might have Azipped over to avoid a dip.@  Officer Davis stopped appellant and asked appellant to get out of the vehicle.  As he was getting out of his vehicle, appellant grabbed the bed rail on the back of the vehicle and Astumbled out.@  Appellant=s clothes were in a disorderly condition. When Officer Davis asked appellant for his driver=s license, appellant gave him his social security card.  Appellant never did furnish his driver=s license. Officer Davis testified that he smelled a strong odor of alcohol on appellant=s breath and that he noticed that appellant=s eyes were Adefinitely@ bloodshot. Appellant kept Amumbling,@ and he addressed Officer Davis as though the officer was in the military. Officer Davis asked appellant if he had been drinking, and appellant said that he had not.

Officer Davis requested that appellant perform two field sobriety tests:  the heel-to-toe walk-and-turn test and the one-legged stand test.  Officer Davis testified that appellant failed to complete either test as instructed.  Officer Davis also performed the horizontal gaze nystagmus test (HGN) at the scene. Officer Davis testified that, AThere was nystagmus at 45-degree angle, a lot of jerking, which indicated that there was some type of either alcoholic beverage or maybe another narcotic.@  Based on the results of appellant=s field sobriety tests and the HGN test, Officer Davis testified that appellant was under the influence of a substance. 

 Officer Davis placed appellant under arrest and transported him to the Plano Police Department.  At the police department, appellant was put in an intoxilyzer room, read his statutory warnings, and asked to take a breath test.  Appellant refused to take the breath test.  Appellant was asked to perform the one-legged stand test and the heel-to-toe walk-and-turn test in the intoxilyzer room. Again appellant failed to complete the tests as instructed.  While performing the one-legged stand test, appellant held onto a wall.  Officer Davis testified that, while attempting to give appellant his statutory warnings, he had a difficult time getting appellant to pay attention and that appellant continually interrupted him. 

Officer Davis was a certified peace officer at the time that the alleged offense was committed. Officer Davis had been in law enforcement for some seven years, and he had been certified for three years in the field of sobriety tests.  He was also certified to administer the HGN test.  On many occasions, Officer Davis had made determinations as to whether individuals were intoxicated.  The following testimony appears in the record of the examination of Officer Davis by the prosecutor:

Q:  Based on your training and experience and observations of the Defendant=s behavior, his driving, his performance or inability to perform the field sobriety tests, did you form an opinion as to whether the Defendant had lost the normal use of mental or physical faculties?

A:  Yes I did.

Q:  What was your opinion?

A:  My opinion was that the subject was definitely intoxicated.

Q:  And do you have an opinion as to what caused the Defendant=s intoxication?

A:  Alcoholic beverage.

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Q:  Officer based on the Defendant=s statements that he made in the intoxilyzer room, did you have any indication that he could have been intoxicated by ingesting anything other than alcohol?

A:  It=s possible.  It could have been a combination.  But when I approached the vehicle that he was driving, I could smell a strong odor of an alcoholic beverage. 

The charging instrument contained two paragraphs regarding means of intoxication.  The paragraphs alleged that appellant:

operate[d] a motor vehicle in a public place while the said defendant was intoxicated by not having the normal use of mental and physical faculties by reason of the introduction of alcohol into the body,

while intoxicated namely: did not have the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug or combination of two or more of these substances into the body, and while so intoxicated the said Robert Allen Kaleta, Sr. did then and there operate a motor vehicle in a public place.

After the State had rested its case, appellant moved for a verdict of not guilty.  The record reflects the following in that regard:

THE COURT:  Well the motion is granted to the extent of the allegation exclusively of alcohol. The other alternate pled ground, the motion for, in effect, judgment of acquittal is denied, at this point.

If I had had a jury in the box, and you asked this, I would have taken from the jury the alcohol alone ground.

[DEFENSE COUNSEL]:  Okay. So just so I=ll know and that I=m clear, Your Honor, which paragraph are we under?  The alcohol only?

THE COURT:  No. The alternative one.  While intoxicated regardless of why or what or a combination of, is that if intoxicated one is driving.  That one. Not the exclusive alcohol.  See, the first one is exclusive impairment because of alcohol.

[DEFENSE COUNSEL]:  And you=ve granted my motion with regard to that paragraph?

THE COURT:  To the exclusive alcohol allegation....

THE COURT:  So, in other words, a second way that its pled in the Information is still viable.

Both appellant and his wife testified that, following appellant=s motorcycle accident, he was given Tylenol with codeine by an emergency room physician.  He had finished taking the medicine about two weeks prior to his arrest on this charge.  The record also reflects that appellant had taken some regular Tylenol on the morning of October 14th.  There is no other testimony concerning appellant=s use of Aa controlled substance, a drug or combination of two or more of these substances into the body@ to any extent much less to the extent that he became intoxicated thereby.  Intoxication by alcohol alone had already been determined by the trial court.

We are not asked to determine whether the record would have supported a finding that appellant became intoxicated solely by the introduction of alcohol into his body.  We are asked to determine the issue of intoxication by controlled substances. In order to support the finding in this case, the record must contain expert testimony because the driving-while-intoxicated charge is based, at least in part, upon drugs or a controlled substance.  Smithhart v. State, 503 S.W.2d 283 (Tex.Cr.App.1973).

In Smithhart, the defendant was arrested for operating a motor vehicle while under the influence of drugs.  The only witness at trial was Gene Bolden, an officer from the Lewisville Police Department.  Officer Bolden was the officer who arrested the defendant in connection with the officer=s investigation of a collision in which the defendant was involved just prior to his arrest.  Officer Bolden testified that the defendant=s eyes were glassy, that he was incoherent, that his pupils were dilated, and that he was unsure of himself.  Officer Bolden further testified that the defendant had told him that he was receiving treatment for a broken foot, that he had been to his doctor=s office, and that he had received a pain shot.  The defendant also told Officer Bolden that he had had several drinks of vodka earlier in the day and that he had taken seven Valium that day.

The court in Smithhart observed that Officer Bolden had been a police officer for only four months.   The court stated that non-experts may testify as to whether a person was Adrunk.@  The court stated:

Unlike alcoholic intoxication, which is Aof such common occurrence@ that its recognition requires no expertise as in Innes v. State, [293 S.W. 821 (1926)], this court is unable to say that such is the case with being under the influence of drugs.

Smithhart v. State, supra at 286.  However, the court further stated that cases involving the intoxication from drugs is different.  Smithhart v. State, supra at 285.  In Smithhart, no such expert opinion testimony was offered.

Even if we assume that he was an expert in this regard, Officer Davis did not express that opinion.  To the contrary, even though he testified that Ait could have been a combination,@ it was his opinion that the intoxication was from the use of alcohol.  There is no testimony that the use of alcohol was accompanied by the use of a controlled substance, a drug or any combination of the two either with each other or with alcohol.  The missing element connecting Officer Davis=s observations to a conclusion that appellant was under the influence of drugs is critical to the sanctity of the conviction.  Smithhart v. State, supra at 286.[1]

We are aware that the trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony and that the trial court can believe or disbelieve all or any part of the testimony and may resolve any inconsistencies in the testimony. See Grant v. State, 989 S.W.2d 428 (Tex.App. B Houston [14th Dist.] 1999, no pet=n).  Here, the trial court could have completely disbelieved appellant=s testimony as well as his wife=s testimony regarding the non-use of drugs.  However, that does not supply the missing element required by Smithhart, that being the intoxicating effect on appellant of any drugs or controlled substance, alone or in combination with another drug or controlled substance or alcohol.

  The evidence is legally insufficient to show that appellant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug or combination of two or more of these substances into the body, and that, while so intoxicated, he operated a motor vehicle in a public place.  Because we find that the evidence is legally insufficient, we need not discuss factual insufficiency.  Appellant=s sole point of error is sustained.

We reverse the judgment of the trial court and render a judgment of acquittal.

March 27, 2003                                                                       JIM R. WRIGHT

Do not publish. See TEX.R.APP.P. 47.2(b).                            JUSTICE

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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[1]See Pointer v. State, 467 S.W.2d 426 (Tex.Cr.App.1971), and Hudson v. State, 453 S.W.2d 147 (Tex.Cr.App.1970), for examples of cases in which such expert opinion was provided.