MacK, Keith D. v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 18, 2004

Affirmed and Memorandum Opinion filed March 18, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00036-CR

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KEITH D. MACK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court At Law

Walker County, Texas

Trial Court Cause No. 02-1118

M E M O R A N D U M   O P I N I O N

Appellant Keith D. Mack was convicted by a jury of the misdemeanor offense of driving while intoxicated and sentenced to one year of confinement in the Walker County Jail.  In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.  We affirm.

I.  Factual and Procedural Background

At approximately 5:30 a.m., on July 10, 2002, an eighteen-wheel truck entered the New Waverly weigh station in Walker County, Texas.  The driver of the truck proceeded over a series of scales under the watch of Edwin Kendig, a commercial motor vehicle inspector at the station, and parked in an adjacent lot after being notified of a weight violation. Kendig radioed Terry Vogler, a trooper with the Texas Department of Public Safety license and weight division, and asked Vogler to drive his patrol vehicle to the area where the truck was parked and to continue the inspection. 

As Vogler approached, he saw the truck roll to a stop.  Vogler exited his vehicle and began looking for the driver. He found a female in the passenger=s seat of the truck=s cab and appellant atop the trailer doing what appeared to be a load adjustment.  At Vogler=s request, appellant stepped down from the trailer. As appellant descended, Vogler observed appellant moving awkwardly.  According to Vogler, once appellant reached the bottom of the trailer, appellant appeared slouched.  Vogler followed appellant to a truck parked nearby, where appellant sat on the truck=s wheel.  Vogler began to instruct appellant on what the inspection would entail.  As he did so, Vogler observed appellant=s mannerisms and appearance, specifically appellant=s lack of eye contact, his slurred and emphatic speech, his bloodshot eyes, and the smell of alcohol on appellant=s breath. Appellant maintained that his brother, not appellant, was the driver of the truck and that his brother had walked off toward the interstate highway.  Vogler briefly investigated appellant=s claim by searching the parking lot, questioning a truck driver parked near the highway, and checking the interstate highway itself.  Unsuccessful in his search, Vogler returned and called Kendig, who identified appellant as the driver of the vehicle.  Vogler attempted to conduct a field sobriety test at the scene, but appellant refused to cooperate.  Vogler arrested appellant for driving while intoxicated based on what he had observed.  According to Vogler, when he asked appellant whether he had been drinking, appellant responded that it did not matter because he was not the one driving the truck.

Appellant was charged by information with the misdemeanor offense of driving while intoxicated.  See Tex. Pen. Code Ann. ' 49.04 (Vernon 2003).  Appellant pleaded not guilty.  A jury found appellant guilty, and the trial court sentenced him to one year of confinement in the Walker County Jail and assessed $255.50 in court costs.

II. Issues Presented

Appellant presents the following issues for review:

(1)     Is the evidence legally sufficient to support appellant=s conviction?

(2)     Is the evidence factually sufficient to support appellant=s conviction?

III. Analysis and Discussion

A. Is the evidence legally sufficient to support appellant=s conviction?

In his first issue, appellant contends the evidence is legally insufficient to prove that (1) he was the driver of the truck and (2) he was intoxicated.

In evaluating a legal-sufficiency challenge, we review the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so.  Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).

A person commits the offense of driving while intoxicated if (1) the person (2) is intoxicated (3) while operating (4) a motor vehicle (5) in a public place.  Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003).  With regard to appellant=s first contention that he was not the driver of the truck, appellant relies on the testimony of his brother, Kevin Mack, who claimed he was the person behind the wheel of the truck on the morning of appellant=s arrest, the fact that appellant maintained his brother was the driver when appellant spoke to Vogler at the scene, and the fact that Inspector Kendig was the only witness who was able to identify appellant as the driver.^[1]

Inspector Kendig testified that he witnessed appellant driving the truck when it entered the weigh station.  Kendig stated that, though it was dark outside, he was able to see inside the truck with the aid of special lighting and his near level position with the driver. When later called by Trooper Vogler to identify the driver of the over-weight truck,  Kendig confirmed that appellant was the driver.  Kevin Mack contradicted this testimony.  He testified that he was learning to drive the eighteen-wheel truck under the guidance of appellant, who was in the sleeper compartment of the truck as it entered the weigh station.  Kevin Mack further testified that after parking the truck, he walked quickly to the interstate highway, fearing liability on unpaid traffic tickets.  Kevin Mack claimed that once he reached the interstate, he received a ride from a passing motorist who took him to a pay phone at a filling station.

The State points out that Kevin Mack=s testimony is inconsistent with that of Vogler and Kendig. Kendig described the parking area as being surrounded by a fence, yet Kevin Mack could not recall coming to a fence and instead said he went through bushes to reach the highway.  Vogler testified that the truck was parked in a position so that additional vehicles were located to the left, but Kevin Mack stated the other trucks were located to the right.^[2]  To the extent the testimony is inconsistent, the jury as the trier of fact had the ultimate authority to determine the credibility of witnesses and the weight to be given to their testimony.  See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).  Any inconsistencies in the testimony should be resolved in favor of the jury=s verdict in a legal-sufficiency review.  Johnson v. State, 815 S.W.2d 707, 712B13 (Tex. Crim. App. 1991).  Upon reviewing the evidence under our deferential standard, we conclude that a rational trier of fact could have found appellant to be the driver of the truck beyond a reasonable doubt.

Appellant next contends the evidence is legally insufficient to prove he was intoxicated.  Intoxication is (a) not having normal use of mental or physical faculties by reason of 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; or (b) having an alcohol concentration above 0.08 or more. Tex. Pen. Code Ann. ' 49.01(2)(A)B(B) (Vernon 2003) (emphasis added).  Appellant did not take an alcohol test in this case.^[3]  Therefore, the State was required to prove that appellant, as a consequence of alcohol consumption, did not have the normal use of mental and physical faculties while operating his vehicle.  See id. ' 49.01(2)(A).

Trooper Vogler testified that he had over twenty-six years= experience with the Department of Public Safety, during which time he had observed multiple occurrences of driver intoxication.  According to Volger=s testimony, appellant appeared intoxicated based on: (1) his slurred speech; (2) his bloodshot eyes; (3) the smell of  alcohol on his breath and person; (4) his Aawkward@ descent from atop the trailer; (5) his Aslow and deliberate@ walk punctuated by Aa lot of yelling and gesturing@; and (6) his emphatic demeanor.  Vogler testified that, based on his observations, he concluded appellant was intoxicated.  The opinion testimony of the arresting officer, standing alone, is sufficient to prove the element of intoxication.  See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (panel op.).

In challenging the legal sufficiency of the evidence, appellant relies on the fact that he was able to maneuver the truck through the weigh station without showing impairment of faculties.  Specifically, appellant points out that (1) he had no trouble driving the truck over the scales, which required three stops at specific points, and (2) he proceeded through the parking area occupied by other vehicles and came to rest without incident.  He cites Inspector Kendig=s testimony that the driver did not have a problem pulling in and over the scales.

Although driving in a reckless manner may provide some evidence to establish impairment of physical or mental faculties, the definitions of intoxication and driving while intoxicated do not require the vehicle be driven in a reckless manner. See Tex. Pen. Code Ann. ' 49.01(2)(A) (stating that intoxication is Anot having normal use of mental or physical faculties by reason of introduction of alcohol . . . .@), ' 49.04(a) (AA person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.@). Therefore, appellant=s argument that he drove the vehicle without incident, while perhaps providing some support for his contention that he was not intoxicated, must be viewed in light of Vogler=s testimony indicating appellant was intoxicated.  After reviewing the evidence, we conclude that a rational trier of fact could have found the element of intoxication beyond a reasonable doubt.

Having reviewed appellant=s contentions, we conclude the evidence is legally sufficient to sustain appellant=s conviction for driving while intoxicated.  Accordingly, we overrule appellant=s first issue.

B.      Is the evidence factually sufficient to support appellant=s conviction?

In his second issue, appellant challenges the factual sufficiency of the evidence to support a finding of intoxication.  When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of Ain the light most favorable to the prosecution@ and set aside the verdict only if it is Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@  Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).  This concept embraces both Aformulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.@  Id. at 11. Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 648.

When reviewing a factual-sufficiency challenge, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  Here, appellant cites the same reasons for factual sufficiency as discussed under legal sufficiency, namely (1) he had no trouble driving the truck over the scales, which required three stops at specific points, and (2) he was able to park the truck in the parking lot among other vehicles without incident.  In addition, appellant points out that Kendig did not testify that he noticed the smell of alcohol on the driver.  Appellant also points to additional support of his sobriety based on his ability to climb atop the cargo on the trailer.  However, the record does not contain testimony indicating the manner in which appellant ascended the trailer. 

In this case, Vogler made several observations that led him to conclude appellant was intoxicated.  Although Vogler=s testimony may be in conflict with appellant=s contention that the truck was driven with no sign of driver impairment, the jury is the sole judge of the facts, the credibility of the witness, and the weight to be given to the evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A factual-sufficiency challenge will not necessarily be sustained simply because the record contains conflicting evidence upon which the fact finder could have reached a different conclusion. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1998).  A reviewing court may disagree with the fact finder=s resolution of conflicting evidence only when it is necessary to prevent manifest injustice.  See id. at 164B65.  A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State.  See Cain, 958 S.W.2d at 410.

After reviewing the evidence without Athe prism of in the light most favorable to the prosecution,@ we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule appellant=s second issue.    

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 18, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant argues that his brother Kevin Mack looks very similar to appellant.  The record, however, contains no testimony or exhibits that would indicate a physical resemblance between appellant and Kevin Mack.  Furthermore, the jury, having seen Kevin Mack testify at trial, could have taken into account any similarities. 

^[2]  The State places additional emphasis on Vogler=s testimony that when Vogler asked for appellant=s logbook, appellant turned to a female passenger and asked her to Aget his logbook for him.@  However, Vogler later contradicted this testimony by stating that appellant Asimply said get the logbook.@ (emphasis added).

^[3]  Vogler testified that he began the horizontal gaze nystagmus test, but appellant failed to cooperate.  According to Vogler, appellant refused to perform any other field sobriety tests.