Robert Wyatt v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00150-CR
ROBERT WYATT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 40,788-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
While driving home after an upsetting argument with his wife, Robert Wyatt, who had
admittedly consumed two large beers, was speeding—fifty-nine miles per hour in a zone with a
speed limit of forty-five—on Highway 80 in March 2011. Noticing Wyatt’s speeding vehicle,
Texas Department of Public Safety (DPS) Officer Carl Davis initiated a traffic stop. Before
pulling over to the side of the road, Wyatt weaved over the center line. Once Davis appeared at
Wyatt’s driver-side window, Wyatt delayed in getting the window down. Davis smelled the odor
of alcohol emitting from Wyatt, and he continued to smell that odor in the open air. Wyatt told
Davis he consumed two twenty-four-ounce beers. 1 After conducting field sobriety tests, Davis
concluded that Wyatt had been driving under the influence of alcohol. As a result of the arrest,
Wyatt was convicted of the felony offense of driving while intoxicated (DWI), had his sentence
enhanced due to prior convictions, 2 and was sentenced to fifty years’ imprisonment. Because the
1
Two twenty-four-ounce “tallboy” cans appear to be the equivalent of four, U.S. standard, twelve-ounce cans of
beer. See, e.g., Blood Alcohol Percentage Charts, TX. ALCOHOLIC BEVERAGE COMM’N,
http://www.tabc.state.tx.us/enforcement/blood_alcohol_percentage_chart.asp.
2
The indictment contained the following enhancement paragraphs:
And it is further presented in and to said Court that, prior to the commission of the aforesaid
offense (hereafter styled the primary offense), on the 25th day of June, 1993, in cause number
6315 in the County Court of Marion County, Texas, the defendant was convicted of an offense
relating to the operating of a motor vehicle while intoxicated; and on the 21st day of May, 1996, in
cause number 96-127 in the County Court at Law of Harrison County, Texas, the defendant was
convicted of an offense relating to the operating of a motor vehicle while intoxicated;
And it is further presented in and to said Court that, prior to the commission of the aforesaid
offense (hereafter styled the primary offense), on the 11th day of July, 2002, in cause number
F11,804 in the 115th Judicial District Court of Marion County, Texas, the defendant was
convicted of the felony offense of Driving While Intoxicated.
And it is further presented in and to said Court that, prior to the commission of the primary
offense, and after the conviction in cause number F11,804 was final, the defendant committed the
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evidence is sufficient to support the conviction, we affirm the judgment of the trial court, after a
modification.
(1) Sufficient Evidence Supports the Verdict
Wyatt argues, in his one appellate point, that the evidence is insufficient to support a
finding beyond a reasonable doubt that he operated a motor vehicle while intoxicated.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We are to conduct a rigorous
sufficiency review focusing on the quality of the evidence presented. Brooks, 323 S.W.3d at
917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the
Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,
443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
felony offense of Driving While Intoxicated and was convicted on the 10th day of August, 2004,
in cause number F13,419 in the 276th Judicial District Court of Marion County, Texas.
Because the indictment alleged, in the first paragraph, that Wyatt had two prior convictions for DWI, the offense
was a felony of the third degree. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). If it is shown on trial of
a felony offense that “the defendant has previously been finally convicted of two felony offenses, and the second
previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become
final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years or less than 25 years.” TEX. PENAL CODE ANN. § 12.42(d) (West
Supp. 2012).
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The elements of the offense are measured as defined by a hypothetically correct jury
charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct
jury charge “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.” Id.
Under Texas law, a person is guilty of DWI if the person (1) is intoxicated (2) while
operating a motor vehicle (3) in a public place. See TEX. PENAL CODE ANN. § 49.04 (West Supp.
2012). Wyatt contends only that the evidence was insufficient to prove the intoxication element
of the offense. Intoxication may be proved one of two ways—(1) proof of impairment, i.e., loss
of the normal use of mental or physical faculties, or (2) proof of alcohol concentration in the
blood, breath, or urine of 0.08 or more, i.e., intoxication “per se.” TEX. PENAL CODE ANN.
§ 49.01(2) (West 2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. 2010). Here, Wyatt
complains that intoxication was not proven by impairment or by proof of blood-alcohol
concentration in the blood. We disagree.
Davis initiated the traffic stop because Wyatt was speeding, but noticed Wyatt weave
over the center line before he pulled onto the side of the road. After initiating contact with
Wyatt, Davis noticed a strong odor of alcohol emanating from Wyatt’s car. The odor of alcohol
did not dissipate as Davis spoke with Wyatt at the back of Wyatt’s car. Wyatt admitted that he
consumed two twenty-four ounce cans of beer, the last of which was consumed approximately
thirty minutes before the stop. Wyatt did not use the car for balance while walking, and there
were no open containers of alcoholic beverages in the car. When speaking with Wyatt, Davis
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noticed a small piece of chewing tobacco on Wyatt’s shirt, suggesting to Davis that Wyatt used
the tobacco to try to mask the odor of alcohol. Wyatt seemed to be upset and told Davis he had
been crying due to an argument with his wife. Wyatt’s eyes were watery and bloodshot, and his
speech was slurred. Wyatt’s answers to Davis were consistent, and he did not sway when he
stood behind his car. Davis administered field-sobriety tests.
Wyatt demonstrated six clues of intoxication on the horizontal gaze nystagmus (HGN)
test. While performing the walk-and-turn test, Wyatt used his arms to balance and stopped and
asked directions while he was turning. During the one-leg-stand test, Wyatt put his foot down
twice, swayed, used his arms, and hopped.
Davis testified that, based on Wyatt’s speeding, lane violation, failing to roll down the
window when Davis approached the vehicle, the odor of alcohol, admission to drinking two
twenty-four ounce cans of beer, fumbling in his vehicle for identification, and performance on
the field sobriety tests, Davis formed the opinion that Wyatt was intoxicated. The video
recording of Davis’ encounter with Wyatt was played for the jury. The jury was able to observe
Wyatt throughout the course of the stop, including Wyatt’s performance on the field sobriety
tests.
Davis’ testimony about Wyatt’s performance on the field sobriety tests is evidence of
Wyatt’s loss of his physical faculties by reason of the introduction of alcohol into the body. See
Compton v. State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet. ref’d) (evidence of
lack of smooth pursuit on HGN test, using hands to balance during one-leg-stand test, speeding,
running red light, smell of alcohol on breath, admission of drinking two beers, and one cold beer
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found in vehicle, sufficient to support DWI conviction); Reagan v. State, 968 S.W.2d 571, 573
(Tex. App.—Texarkana 1998, pet. ref’d) (defendant did not properly complete walk-and-turn
and one-leg-stand tests, smelled of alcohol, admitted to consuming “a couple of drinks,” had
bloodshot, watering, and dilated eyes, slurred speech, and failed HGN test); Kennedy v. State,
797 S.W.2d 695, 696 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (evidence of intoxication
sufficient where defendant swayed as he performed “head tilt” test, failed to follow instructions
and appeared to lose balance when performing walk-and-turn test, dropped leg on one-leg-stand
test, and had red, glassy eyes, slurred speech, and strong odor of alcohol on breath). There was
sufficient evidence of Wyatt’s impairment.
After his arrest, Wyatt was transported to Good Shepherd Hospital in Longview for Davis
to obtain a blood specimen. Karen Ream, a forensic scientist for the Texas DPS crime laboratory
in Tyler, testified that she performed the blood-alcohol concentration (BAC) test on Wyatt’s
blood specimen, taken at the hospital at 11:19 p.m. on the evening of Wyatt’s arrest. The
specimen contained 0.10 grams of alcohol per 100 milliliters of blood. The BAC of 0.10 reflects
results for that time only. Ream testified that she could not determine Wyatt’s BAC at 10:45
p.m. on that same evening. Retrograde extrapolation is an estimate of BAC at a prior time, based
on either hypothetical or a known set of conditions. Ream did not perform a retrograde
extrapolation in this case because she did not have adequate information to do so. 3 Ream,
3
Ream also stated that she does not perform retrograde extrapolations because they are estimates and are subject to
manipulation.
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therefore, could not determine from her analysis whether Wyatt’s BAC at the time of the traffic
stop was 0.08 or greater.
Wyatt contends that Ream’s testimony does not establish Wyatt’s BAC at the time of the
traffic stop. He claims this theory of intoxication is thus eliminated. On the contrary, Wyatt’s
BAC test result, which indicated a 0.10 BAC approximately ninety minutes after he drove,
during which time he was not in a position to consume more alcohol, was probative evidence
that his BAC level while he drove was in excess of 0.08, even absent expert retrograde
extrapolation testimony—given the accompanying evidence of impairment already discussed. 4
See Kirsch, 306 S.W.3d at 746. This evidence raises a logical inference that Wyatt was
intoxicated at the time he was driving at 10:45 p.m., as well as at the time the BAC test was
performed, in light of the additional evidence, including the strong odor of alcohol emanating
from Wyatt, Wyatt’s admitted recent consumption of two twenty-four-ounce beers, his red,
watery eyes, slurred speech, speeding, lane violation, fumbling in his vehicle for identification,
and performance on the field sobriety tests. See id. Evidence of intoxication obtained near the
time of driving is probative evidence the defendant was intoxicated while driving. See
Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006) (results of breath tests taken
seventy-five minutes after driving had “considerable probative value” in proving both per se and
impairment intoxication at time of driving); State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.
App. 2005) (results of breath test obtained ninety minutes after arrest probative of both
impairment and per se prongs of DWI offense); Stewart v. State, 129 S.W.3d 93, 97–98 (Tex.
4
The jury was instructed on both methods of proof of intoxication.
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Crim. App. 2004) (results of breath test obtained eighty minutes after arrest probative of both
impairment and per se prongs of DWI offense).
After viewing this evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found beyond a reasonable doubt that Wyatt operated his motor vehicle
while intoxicated.
(2) Modification of Judgment
After the jury found Wyatt guilty of the felony offense of DWI, Wyatt elected to have the
trial court assess punishment. Wyatt entered a plea of true to both enhancement allegations. The
judgment reflects no plea or finding regarding the first enhancement paragraph.
This Court has the authority to modify the judgment to make the record speak the truth
when the matter has been called to our attention by any source. TEX. R. APP. P. 43.2; French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex.
App.—Texarkana 2009, no pet.). The judgment does not accurately reflect what happened in
open court. When the appellate court has the necessary evidence before it for correcting the
judgment, the judgment may be modified and corrected on appeal. Banks v. State, 708 S.W.2d
460, 462 (Tex. Crim. App. 1986).
Because Wyatt entered a plea of true to the first enhancement paragraph of the
indictment, and the court found the first enhancement paragraph to be true, but the judgment
reflects these facts only as to the second enhancement, we modify the judgment to reflect a plea
of true and a finding of true to the first enhancement paragraph as well as the second. See TEX.
R. APP. P. 43.2(b).
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We affirm the judgment of the trial court, as modified.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 3, 2013
Date Decided: July 12, 2013
Do Not Publish
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