Luis Gonzalez Perez v. State ( 2004 )

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    NUMBER 13-03-167-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

  LUIS GONZALEZ PEREZ,                                                            Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

    On appeal from the 103rd District Court

of Cameron County, Texas.

   MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo

  Opinion by Chief Justice Valdez

         After a bench trial, the trial court convicted appellant, Luis Gonzalez Perez, of driving while intoxicated. In two issues, appellant contends that the evidence was neither legally nor factually sufficient to support the conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 11, 2002, appellant was arrested and charged with driving while intoxicated in Harlingen, Texas. An indictment was issued, and appellant pled not guilty. Subsequently, appellant waived his right to a trial by jury.

         At trial, Harlingen Police Officer Alfredo Guerra testified he noticed appellant driving normally towards him on Rangerville Road with a right headlight that was out. Guerra then turned around and proceeded to stop appellant. After appellant pulled over, he exited the vehicle, a red Cougar, and began to approach Guerra before being asked to do so. Guerra asked appellant to remain at his car, but appellant continued to approach. Guerra then asked appellant to submit to a series of field sobriety tests, and appellant refused. Guerra called for backup and informed appellant he would be placed under arrest for driving while intoxicated. Appellant then agreed to the field sobriety testing.

         After moving into a gas station parking lot, Guerra performed several tests on appellant. During the walk-and-turn test, appellant stepped off the line, used his arms for balance, and did not comply with the heel-to-toe instruction. During the horizontal gaze nystagmus test, appellant showed all six clues of intoxication. During the one-leg stand where appellant was instructed to count to thirty in thousands, he did it correctly until seventeen and just began counting regularly from there until thirty. Guerra testified the appellant was unable to follow directions. Appellant would start a test too soon or do it incorrectly. As a result, Guerra gave instructions more than once for a couple of the tests.

         Guerra testified that he was trained in the administration of field sobriety tests and had been for the nine months prior to trial. He also noted he had made approximately thirty driving-while-intoxicated stops in his three-and-a-half year career as a certified peace officer. After the testing, Guerra determined that appellant was intoxicated and placed him under arrest. Guerra arrived at this determination by observing appellant’s slurred speech, red bloodshot eyes, failure of the field sobriety tests, and off-balance appearance.

         Appellant testified at trial, giving a different account of the night’s events. After consuming shrimp cocktail and a little more than half of a beer, appellant left a lounge, driving in his sister’s car. After a police car pulled up behind him, he stopped at a red light and then proceeded to make a right turn, stopping just past the driveway of a gas station. After removing his driver’s license from his wallet, he waited until the police officer asked him to exit his vehicle and then did so. Without leaning on his car or staggering, he met the officer at the trunk of his sister’s car. Appellant then followed the officer into an adjacent parking lot, where he was presented with some papers about an “HT” test. Because he did not understand, he refused the test. After initially refusing the officer’s request to submit to field testing, he agreed to complete the tests. However, appellant denied taking the walk-and-turn test. He also stated that he agreed to the breathalyzer test at the police station but refused to take the blood test because he was told he would have to pay for it.

         After his trial and conviction, appellant pled true to an enhancement paragraph for an aggravated assault conviction. On February 28, 2003, appellant was sentenced to four years confinement.

II. ANALYSIS

A. Legal Sufficiency of the Evidence

         By his first issue, appellant contends the evidence is legally insufficient to support his conviction for driving while intoxicated. Specifically, appellant alleges the State failed to present sufficient evidence that appellant 1) operated a motor vehicle and 2) was intoxicated.

1. Standard of Review

         In evaluating the legal sufficiency of the evidence, we must review all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The trier of fact, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As such, the reviewing court must not judge the credibility of the witnesses or sit as a thirteenth juror. Henderson v. State, 825 S.W.2d 746, 749 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). Any inconsistencies in the testimony should be resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

         Sufficiency of the evidence is measured against the elements of the offense as defined in a hypothetically correct jury charge. Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.–Corpus Christi 2004, no pet.). “Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240. A person is guilty of driving while intoxicated where the State proves the person operated a motor vehicle in a public place while intoxicated.

2. Motor Vehicle

         Appellant asserts that the State did not provide enough evidence that the vehicle appellant was operating was a motor vehicle. A motor vehicle is, “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.”

         In his brief, appellant alleges, “Officer Guerra never testified that the vehicle appellant was allegedly operating was a ‘motor vehicle.’” However, the record shows Guerra testified on direct examination that he observed appellant driving a red Cougar and identified it as a motor vehicle:

         [Prosecutor]:                  Okay. And the vehicle he was driving, you said it was a red Cougar?

         [Officer Guerra]:    Red Cougar.

         [Prosecutor]:                  Is that a motor vehicle?

         [Officer Guerra]:    Yes, sir.

Further, on direct examination, appellant admitted driving his sister’s car. Among other things, appellant also testified to driving away from the bar, stopping at a red light, and making a right turn. This testimony supports a finding that appellant was in a device that was transporting him on a highway–a motor vehicle. We find this argument is without merit.

3. Intoxication

         In his first issue, appellant also alleges the State failed to present evidence sufficient to prove intoxication beyond a reasonable doubt. Appellant simply asserts the evidence was insufficient to show he had lost the normal use of his mental or physical faculties. A person is deemed intoxicated when the person lacks the normal use of mental or physical faculties by reason of the introduction of alcohol, among other substances, into his body.

         Viewing the evidence in the light most favorable to the verdict, the State presented direct evidence on the intoxication element of the charge. Namely, Guerra testified that he observed signs of intoxication in appellant’s demeanor and behavior. He conducted several field sobriety tests at the time of the stop. Appellant was unable to comprehend basic instructions and did not complete one of the tests. Additionally, Guerra observed appellant was off-balance, had slurred speech and bloodshot eyes, and smelled of alcohol. At this point, Guerra concluded that appellant was intoxicated and arrested him. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (Trooper’s testimony was sufficient to establish intoxication element where he observed appellant was off-balance, had red eyes, mush-mouthed speech, and breath that smelled of alcohol).

         Given this testimony, we believe a rational trier of fact could find the elements of the charge proven beyond a reasonable doubt. After reviewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support the appellant’s conviction. Appellant’s first issue is overruled.

B. Factual Sufficiency of the Evidence

         In his second issue, appellant contends that the State failed to introduce evidence factually sufficient to support his conviction. In particular, he challenges the factual sufficiency of the evidence establishing that 1) he was driving a motor vehicle and 2) he was intoxicated.

1. Standard of Review

         In reviewing the factual sufficiency of the evidence, we review the fact finder’s weighing of the evidence by comparing evidence the State presented with that introduced by the appellant on a disputed fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We reverse a judgment of conviction only if: (1) proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination; or (2) proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Due deference must be accorded to the trier of fact’s determinations on the weight and credibility of the evidence, and we may not merely substitute our own judgment. Id. at 97; Johnson, 23 S.W.3d at 7. When reviewing the factual sufficiency of the evidence, we also measure the evidence against the elements of the offense as defined by a hypothetically correct jury charge. Wheaton, 129 S.W.3d at 272; Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d); cf. Malik, 953 S.W.2d at 240.

2. Motor Vehicle

         As discussed earlier, the State presented evidence that appellant was driving a motor vehicle, a red Cougar, at the time of the stop. During direct examination, appellant admitted to driving this red Cougar, identifying it as his sister’s car. The verdict is not contrary to the overwhelming weight of the evidence on this point, as there is no evidence that the red Cougar the appellant admitted to driving was anything other than a motor vehicle.

3. Intoxication

         Despite the evidence described in our legal-sufficiency review, appellant directs our attention to evidence he contends creates a reasonable doubt as to intoxication. Appellant notes that the State did not present testimony from any backup officers or introduce videotapes of appellant’s roadside field sobriety tests or his appearance and condition at the time of booking at the police station. However, the State may satisfy its burden of proof without additional evidence corroborating the officer’s testimony. See Annis, 578 S.W.2d at 407; Little v. State, 853 S.W.2d 179, 183 (Tex. App.–Corpus Christi 1993, no pet.) (uncorroborated testimony of officer alone is sufficient to establish intoxication); Hargrove v. State, 774 S.W.2d 771, 772 (Tex. App.–Corpus Christi 1989, pet. ref’d) (same).

         Furthermore, appellant argues that Guerra’s testimony that appellant was driving normally when first observed undermines the State’s ability to prove he was intoxicated while driving. However, under the statute, a person need not be driving erratically to commit the offense of driving while intoxicated.

         Appellant argues that the State did not certify Guerra as an expert in the administration of field sobriety testing. Even so, we believe this affects his credibility as a witness, not the sufficiency of the evidence. The credibility of a witness is determined by the trier of fact, and we do not reach such issues on appeal. See Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7.

         Appellant also directs our attention to his own testimony denying intoxication, stating he never took the walk-and-turn test, and explaining his speech is affected by a missing tooth. Appellant also testified that he was not staggering or leaning on the car for balance and did not have slurred speech. Moreover, appellant claims he did not get out of the car until Guerra asked him to do so.

         Appellant’s testimony was directly contradicted by Guerra’s testimony. Guerra testified that appellant failed several field sobriety tests, had slurred speech and bloodshot eyes, and was off-balance and unable to follow instructions. Moreover, both witnesses testified that appellant refused to submit to an alcohol test on the night of his arrest. An appellant’s failure to submit to a breath or blood test may be introduced at trial, and the fact finder may consider such a refusal as evidence of driving while intoxicated. See Bright v. State, 865 S.W.2d 135, 137 (Tex. App.–Corpus Christi 1993, pet. ref’d).

         We believe the trier of fact was presented with ample evidence on the element of intoxication to weigh in arriving at its decision. By finding the appellant guilty, it is apparent that the trial court accepted Guerra’s testimony of the evening’s events. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

         After considering all of the evidence available to the trial court in a neutral light, we find that the verdict is not so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Therefore, we hold the evidence is factually sufficient to support appellant’s conviction. We overrule appellant’s second issue.

III. CONCLUSION

         We conclude the evidence presented at trial was both legally and factually sufficient to support the appellant’s conviction. As such, we affirm the judgment of the trial court.



                                                                        Rogelio Valdez,

                                                                        Chief Justice

Concurring opinion by Justice Errlinda Castillo.

Do not publish.

Tex. R. App. P. 47.2(b).

  Memorandum Opinion delivered and filed

this 26^th day of August, 2004.