Andrew Perez v. State ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00263-CR
Andrew PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 11, Bexar County, Texas
Trial Court No. 934031
Honorable Olin Strauss, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: April 15, 2009
AFFIRMED
Andrew Perez was found guilty of racing on a highway. On appeal, he claims the evidence
is legally and factually insufficient to sustain his conviction. We find the evidence sufficient and
affirm the trial court’s judgment.
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STANDARD OF REVIEW
In a legal sufficiency review, we view the evidence in the light most favorable to the verdict
and then determine whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005).
In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict
aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the
contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have
been met. Id. at 730-31.
THE EVIDENCE
Perez was charged with participating in a race on a highway. “Race” means the use of one
or more vehicles in an attempt to outgain or outdistance another vehicle or prevent another vehicle
from passing. TEX . TRANSP . CODE ANN . § 545.420(b)(2)(A) (Vernon Supp. 2008).
The only witness at trial was Officer Nathan Sandoval, the officer who apprehended and
arrested Perez. Officer Sandoval testified that on August 8, 2005, he was returning to his substation
at the end of his day. As he merged onto the southbound lanes of I-35, he immediately noticed two
vehicles speeding excessively, “to the point to where they were making other vehicles seem as
though they were standing still.” The two vehicles were traveling southbound, one in front of the
other in the far left lane, or the passing lane. Officer Sandoval began to follow the vehicles.
Refreshing his memory with the offense report he completed on August 8, 2005, Officer Sandoval
stated that the front vehicle was a Pontiac van, driven by Perez. He did not remember what color it
was. According to Officer Sandoval, the second vehicle was a small four-door Ford Focus. The van
was in front of the Focus, and both vehicles were traveling at an excessive rate of speed. Both
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vehicles continued to maintain a close distance to each other. As Officer Sandoval accelerated his
patrol vehicle to one hundred miles an hour, he noted that the two vehicles also maintained that
amount of speed. Although Officer Sandoval did not have radar equipment, he was able to pace the
vehicles to verify the speed at ninety-five to one hundred miles an hour. Specifically, he testified that
he paced the second vehicle, the Focus. Again, referring to his report, Officer Sandoval testified there
was a medium amount of traffic at the time. According to Officer Sandoval, it did not appear that
the two vehicles were unrelated to each other, due to their close proximity as they were traveling at
that speed. He observed that the two vehicles “were apparently racing each other at the time.”
Officer Sandoval concluded the two vehicles were apparently racing because they were both
going at a high rate of speed and maintaining a very close proximity to each other. Although he did
not include it in his report, Officer Sandoval remembered that the two vehicles separated for a brief
period of time and then came back together. That is, the two vehicles split for a very short period of
time, one going into the other lane, and then coming back together, one behind the other. They
appeared to want to outdistance or outgain one another, positioning themselves, one in front of the
other, as they continued forward. Officer Sandoval defined “close proximity” as about one or two
car lengths or forty or fifty feet.
Officer Sandoval paced the vehicles for about a half a mile to three quarters of a mile before
activating his emergency lights and stopping both vehicles. He immediately placed Perez, the driver
of the van, under arrest for racing and reckless driving. In Officer Sandoval’s opinion, based on his
training and experience, Perez was racing by outgaining and outdistancing the other vehicle.
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DISCUSSION
In support of his legal insufficiency argument, Perez argues that the evidence only showed
Perez was driving and perhaps speeding in the “fast lane” designated for passing. He further points
out that the vehicles were not cutting across lanes of traffic and that the officer only observed them
for about a half mile. Additionally, Perez focuses on the officer’s memory, emphasizing that the
officer had to refer to his report to give a description of Perez’s vehicle and to identify which driver
he came into contact with first. Furthermore, Perez emphasizes that the officer could not remember
the color of Perez’s vehicle.
To support his factual sufficiency argument, Perez again criticizes the officer for having to
refer to his offense report in order to testify. Perez notes that the officer only paced the Focus and
not his vehicle. He also argues the identity of his vehicle is in question because the officer could not
testify to the color of the vehicle. Perez further contends the officer observed the vehicles for too
short of a period of time for him to determine the drivers were committing an offense.
We hold the evidence is both legally and factually sufficient to support the jury’s verdict.
Firstly, viewing the evidence in the light most favorable to the verdict, we note that Officer Sandoval
testified that Perez, driving a Pontiac van, and another vehicle were traveling at approximately one
hundred miles per hour, one behind the other, and maintaining close proximity to one another. Based
on his experience and his observations, he concluded the two vehicles were trying to outdistance or
outgain one another; that is, they were racing. Based on this evidence, the jury could have found the
essential elements of the offense of racing on a highway. Therefore, the evidence is legally sufficient.
Secondly, viewing the evidence in a neutral light, we note that, as Perez points out, Officer
Sandoval did need to use his report to refresh his memory in testifying to the events surrounding
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Perez’s apprehension and arrest. However, the rules of evidence allow a witness to use a writing to
refresh memory for the purpose of testifying. See TEX . R. EVID . 612. And, although Officer Sandoval
was unable to testify to the color of Perez’s vehicle and only observed the two vehicles for one half
to three quarters of a mile, Perez is essentially attacking the jury’s credibility determination of
Officer Sandoval’s testimony. And the jury, not the appellate court, is the exclusive judge of the
witness’s credibility. See Johnson v. State, 23 S.W.3d 1, 8-9 (Tex. Crim. App. 2000). Viewing all
the evidence in a neutral light, we hold that the jury was rationally justified in finding guilt beyond
a reasonable doubt. Therefore, the evidence is factually sufficient.
We affirm the trial court’s judgment.
Karen Angelini, Justice
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