Francis Steven Bucsko v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00332-CR
FRANCIS STEVEN BUCSKO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Francis Steven Bucsko of felony driving while
intoxicated (DWI) and assessed his punishment at eight years’ confinement. The
trial court sentenced him accordingly.
In two issues, Appellant contends that the punishment is not proportionate
to the crime under the Eighth Amendment and that the evidence is insufficient to
prove guilt beyond a reasonable doubt. Because there was no Eighth
1
See Tex. R. App. P. 47.4.
Amendment violation and because the evidence is sufficient to support the jury’s
verdict beyond a reasonable doubt, we affirm the trial court’s judgment.
On December 24, 2007, then-Deputy (now Sergeant) William Watt of the
Hood County Sheriff’s Department was stopped on Highway 377, watching
traffic. A man pulled up next to Watt and told him that he had just seen a minivan
traveling westbound that “was all over the roadway.” Watt placed a call over his
police radio to locate the minivan. Watt drove westbound and came upon a van
sitting on the right shoulder of the road. Appellant was standing outside the van.
Watt passed the van, made a u-turn, and came back. Watt pulled over, as did
then-Lieutenant (now Constable) William Haynes, who had heard Watt’s call over
the radio. As the two officers pulled up to stop, Appellant, who had returned to
the van, drove away. Watt turned on his lights and stopped the van.
When he approached Appellant, who was still in the van, Watt smelled an
odor of alcohol and asked Appellant if he had been drinking. Appellant denied
drinking but later admitted that he had consumed three drinks at a bar. Watt
observed that Appellant had bloodshot eyes and unsteady balance. Inside
Appellant’s van, the officers found an open can of beer in a paper bag and an
empty beer can.
The officers transported Appellant to jail, where he was given the statutory
warnings. While at the jail, Appellant declined a breath test.
To the extent that Appellant challenges the factual sufficiency of the
evidence by discussing viewing the evidence in a neutral light, we note that
2
Texas courts recognize a single sufficiency standard established by Jackson v.
Virginia.2 In our due-process review of the sufficiency of the evidence to support
a conviction, we view all of the evidence in the light most favorable to the verdict
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. 3
Appellant argues that the fact that he was driving a van while Watt was
searching for a minivan, the lack of physical evidence, contradicting stories, and
the fact that Watt did not testify that Appellant failed the field sobriety tests render
the evidence insufficient to prove guilt beyond a reasonable doubt.
A person commits the offense of DWI when he operates a motor vehicle in
a public place while intoxicated by not having the normal use of his mental or
physical faculties.4 Appellant was so indicted. Contrary to Appellant’s
contention, the fact that he was driving a van and not a minivan is irrelevant to
the sufficiency analysis.5
2
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010).
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
4
Tex Penal Code Ann. §§ 49.01(2)(A), 49.04 (West 2011).
5
See Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.), cert.
denied, 130 S. Ct. 515 (2009); Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
3
The two officers observed Appellant operating a motor vehicle in a public
place. They also testified that they smelled a strong odor of alcohol about
Appellant; he admitted to drinking three drinks at a bar; the police saw an empty
beer can and an open can of beer inside the van he was driving; and he had
bloodshot eyes and was unsteady on his feet. Additionally, Appellant admitted to
the officers that he was intoxicated and rated himself a “five or six” on an
intoxication scale of one to ten.
Applying the appropriate standard of review, and considering the record as
a whole, we hold that the evidence is sufficient to support the jury’s verdict. We
overrule Appellant’s second issue.
In his first issue, Appellant argues that his punishment is not proportionate
to the crime and, consequently, that the trial court violated his Eighth Amendment
protections. Even though Appellant was eligible for community supervision, the
jury was not obligated to probate his sentence. 6 Further, at the time of his arrest,
Appellant was on probation for a second DWI conviction. Appellant also
admitted to the arresting officer that he had violated several conditions of his
community supervision. The sentence imposed here was within the statutory
6
See Tex. Code Crim. Proc. art. 42.12, § 4(a) (West Supp. 2011).
4
range established by the legislature and, in view of the facts of the case, does
not shock the conscience.7 We overrule Appellant’s first issue.
Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 3, 2011
7
See Moore v. State, 54 S.W.3d 529, 543 (Tex. App.—Fort Worth 2001,
pet. ref’d); see also McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert.
denied, 506 U.S. 849 (1992).
5