Robert Lee Ward v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-283-CR
ROBERT LEE WARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Robert Lee Ward appeals his conviction for driving while intoxicated. In
two points, he argues the evidence is legally and factually insufficient to prove
he operated a motor vehicle. 2 We affirm.
1
 See Tex. R. App. P. 47.4.
2
 Appellant does not contest that he was intoxicated at the time of the
single-vehicle accident.
II. Factual and Procedural Background
Appellant was charged with driving while intoxicated, a class B
misdemeanor. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Appellant
pled not guilty, and the trial court conducted a bench trial on August 20, 2008.
Arlington Police Officer Phillip Hinkle testified he received a dispatch at
3:07 a.m. on March 11, 2007. Officer Hinkle testified over Appellant’s hearsay
objection that the 9-1-1 caller said a white SUV hit a tree and a pole on Harris
Road and that the driver was wearing a blue-striped shirt. Officer Hinkle said
that he was near the accident scene when he received the dispatch, and that
upon arrival, he saw the white SUV leaned against a tree and a white male
wearing a blue shirt with stripes leaving the scene on foot. Appellant matched
the description received through dispatch, was the only person in the area, and
was twenty to thirty feet from the vehicle when Officer Hinkle arrived. While
testifying, Officer Hinkle identified Appellant as the person he saw the night of
the accident.
Officer Hinkle testified he pulled his patrol car into the path Appellant was
travelling, exited the patrol car, and made contact with Appellant. Officer
Hinkle asked Appellant for his name, and Appellant gave Officer Hinkle his
driver’s license. Officer Hinkle noticed a scratch on Appellant’s forehead, but
Appellant declined medical care. Officer Hinkle also observed Appellant to be
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disoriented, somewhat confused, and unable to maintain his balance. On cross-
examination, Officer Hinkle acknowledged he did not see the vehicle in
operation, did not see anyone inside the vehicle, and did not talk to anyone that
saw the vehicle in operation or a person inside the vehicle.
Officer Walt Mathis testified he arrived at the accident scene
approximately seven minutes after receiving the dispatch. Upon arrival, he
noticed Appellant had a strong smell of an alcoholic beverage. Officer Mathis
also testified he found an insurance card in Appellant’s name inside the
wrecked vehicle.
Officer Chad Hickey testified he arrived at the accident scene
approximately fifteen minutes after the dispatch. When he opened the door of
the patrol car in which the officers detained Appellant, Officer Hickey was
“overwhelmed by the strong odor of an alcoholic beverage.” Officer Hickey
testified that Appellant had bloodshot, glassy, and watery eyes, that Appellant
had slurred speech, and that Appellant “was stumbling a little bit” while he
stood and talked to Officer Hickey. Appellant denied having anything to drink
but refused all field sobriety tests. In the patrol car on the way to the jail,
Appellant asked Officer Hickey, “[W]hat was the big deal about what happened
back there[;] all [I] hit was a pothole.” At the jail, Appellant said, “I messed up,
didn’t I[?]”
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The trial court found Appellant guilty as charged and sentenced Appellant
to fifteen days’ confinement and a $650.00 fine. This appeal followed.
III. Analysis
A. Legal Sufficiency of the Evidence
Appellant argues in his first point that the evidence is legally insufficient
to support his conviction because no witness saw him operate a motor vehicle
and he did not admit to operating a motor vehicle.
1. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The standard of review for cases based on circumstantial evidence is the
same as the standard for reviewing cases with direct evidence. Laster v. State,
275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009); King v. State, 29 S.W.3d
556, 565 (Tex. Crim. App. 2000). In cases based on circumstantial evidence,
it is not required that all facts point to a defendant’s guilt; it is sufficient if the
combined and cumulative force of all of the incriminating circumstances
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warrants the conclusion of guilt. See Courson v. State, 160 S.W.3d 125, 128
(Tex. App.—Fort Worth 2005, no pet.) (citing Johnson v. State, 871 S.W.2d
183, 186 (Tex. Crim. App. 1993) (en banc), cert. denied, 511 U.S. 1046
(1994)).
2. Applicable Law
A person commits the offense of driving while intoxicated if the person
operates a motor vehicle in a public place without the normal use of mental or
physical faculties due to the introduction of alcohol or other substances into the
body. Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). The
corpus delicti of driving while intoxicated is that someone drove or operated a
motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.
Crim. 497, 498, 250 S.W.2d 200, 200 (1952).
3. Discussion
Appellant contends the hearsay evidence of the 9-1-1 caller’s description
of the driver cannot establish the sufficiency of the evidence because the
hearsay evidence was only admissible to establish probable cause. 3 We
disagree. In conducting a legal sufficiency review, we are required to review
all evidence admitted at trial, even improperly admitted evidence. Moff v.
3
 Appellant does not argue the trial court incorrectly overruled his
objection.
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State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004); Shaffer v. State, 184
S.W.3d 353, 359 (Tex. App.—Fort Worth 2006, pet. ref’d).
Appellant also contends we must reverse his conviction because no one
saw him operating the vehicle. Appellant relies heavily on this court’s opinion
in Hanson v. State, in which we reversed the trial court’s judgment and held
there was insufficient evidence to support the conviction because “the State
did not introduce evidence to show Hanson ever drove the car.” 781 S.W.2d
445, 447 (Tex. App.—Fort Worth 1989), pet. abated, 790 S.W.2d 646 (Tex.
Crim. App. 1990). In Hanson, the police officers observed a wrecked vehicle
with Hanson beside the vehicle. Id. at 446. Hanson had no visible injuries but
seemed upset. Id. Hanson admitted to officers that she had been driving the
car at the time of the accident. Id. However, the State had no other evidence
that Hanson drove or owned the car. Id. Because we could not consider
Hanson’s out-of-court statements “unless the fact that the crime was
committed ha[d] been established by other evidence,” we held the evidence
insufficient to support the conviction. Id. Hanson is distinguishable because
the conviction here is not dependent upon an uncorroborated extra-judicial
admission by Appellant. See Turner v. State, 877 S.W.2d 513, 516 (Tex.
App.—Fort Worth 1994, no pet.).
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Neither an extra-judicial confession nor direct evidence is required to
prove that a DWI defendant was operating a vehicle; the State may prove the
identity of a vehicle’s driver by circumstantial evidence. See Hernandez v.
State, 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding
circumstantial evidence sufficient to prove defendant was driving vehicle when
defendant was the only person walking near wrecked vehicle despite
defendant’s assertion to investigating officers that he was not the driver and
that the driver had run away); Yeary v. State, 734 S.W.2d 766, 769 (Tex.
App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to
show defendant was driving vehicle when defendant was the only person in the
vicinity of wrecked vehicle and vehicle’s windshield was lying on defendant’s
body); see also Freeman v. State, No. 02-08-00079-CR, 2009 WL 579292, at
*3 (Tex. App.—Fort Worth March 5, 2009, no pet.) (mem. op., not designated
for publication) (holding circumstantial evidence sufficient to prove defendant
was driving vehicle when defendant was the only person in the vehicle, the
vehicle belonged to defendant, defendant was bleeding, and although he did not
admit to driving the vehicle, defendant told the police he had just been in a
wreck).
There is legally sufficient circumstantial evidence in this case to prove
beyond a reasonable doubt that Appellant was driving the wrecked vehicle. A
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9-1-1 caller reported that a white SUV hit a tree and that the driver was
wearing a blue-striped shirt. Officer Hinkle saw Appellant, with a scratch on
his forehead and wearing a blue-striped shirt, approximately twenty to thirty
feet from the white SUV when he arrived at the accident scene; no one else
was in the area. Officer Mathis also found an insurance card inside the vehicle
indicating Appellant insured the vehicle. Further, Appellant voluntarily told
Officer Hickey that he “hit a pothole” and that he had “messed up.” Viewed
in the light most favorable to the prosecution, we hold that the evidence is
legally sufficient to support the trial court’s determination that Appellant
operated the vehicle while intoxicated. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule Appellant’s first point.
B. Factual Sufficiency of the Evidence
Appellant contends in his second point that the evidence is factually
insufficient to support his conviction because no witness saw him operate a
motor vehicle and he did not admit to operating a motor vehicle.
1. Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
8
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the judgment. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the factfinder or because we disagree with the factfinder’s resolution of
a conflict in the evidence. Id. We may not simply substitute our judgment for
the factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000);
Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the
record clearly reveals that a different result is appropriate, we must defer to the
factfinder’s determination of the weight to be given contradictory testimonial
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evidence because resolution of the conflict “often turns on an evaluation of
credibility and demeanor, and those jurors were in attendance when the
testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we
conclude that it is necessary to correct manifest injustice, we must give due
deference to the factfinder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” Id. at 9.
2. Discussion
In this case, a 9-1-1 caller reported that a white SUV hit a tree and that
the driver was wearing a blue-striped shirt. When he arrived, Officer Hinkle
saw Appellant, wearing a blue-striped shirt, approximately twenty to thirty feet
from the white SUV. Appellant had a scratch on his forehead, and there were
no other persons in the area. Officer Mathis found an insurance card showing
Appellant insured the vehicle. Further, Appellant voluntarily told Officer Hickey
that he “hit a pothole” and “I messed up, didn’t I.” Viewing all of the evidence
in a neutral light, we cannot say that the evidence is so weak that the trial
court’s determination that Appellant operated the vehicle while intoxicated is
clearly wrong and manifestly unjust or that the conflicting evidence so greatly
outweighs the evidence supporting the verdict that the trial court’s
determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson,
204 S.W.3d at 414–15, 417. We overrule Appellant’s second point.
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IV. Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 10, 2009
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