State v. Truong

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,873
5 TRI TRUONG,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Kenneth Martinez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Law Offices of the Public Defender
13 Jorge A. Alvarado, Chief Public Defender
14 Santa Fe, NM
15 Vicki W. Zelle, Assistant Appellate Defender
16 Albuquerque, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 {1} Defendant has appealed a conviction for DWI. We previously issued a notice
2 of proposed summary disposition in which we proposed to uphold the conviction.
3 Defendant has filed a memorandum in opposition. After due consideration, we remain
4 unpersuaded. We therefore affirm.
5 {2} Because the pertinent background information and applicable principles were
6 previously set out in the notice of proposed summary disposition, we will avoid
7 unnecessary repetition here and instead focus on the content of the memorandum in
8 opposition.
9 {3} Defendant has raised two issues, challenging the existence of probable cause
10 to arrest and the admission of his BAT card. [DS 15; MIO 10] Both arguments are
11 premised on Defendant’s continuing assertion that he does not speak or understand
12 English, such that the field sobriety tests were not probative and the officer’s
13 recitation of the implied consent advisory was not efficacious. [MIO 10-16]
14 Defendant’s comprehension of the English language was a question of fact, the
15 resolution of which turned upon credibility determinations. [MIO 10] “[T]he trial
16 court is in a better position [than is an appellate court] to judge the credibility of
17 witnesses and resolve questions of fact[.]” State v. Garcia, 2005-NMSC-017, ¶ 27,
18 138 N.M. 1, 116 P.3d 72. Although Defendant contends that the trial court should
19 have drawn different inferences and arrived at a different conclusion, we cannot re-
20 weigh the evidence on appeal. See State v. Schaff, 2013-NMCA-082, ¶ 11, 308 P.3d
21 160 (“The question for us on appeal is whether the district court’s decision is
2 supported by substantial evidence, not whether the district court could have reached
3 a different conclusion.” (alteration, internal quotation marks, and citation omitted));
4 State v. Estrada, 2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793 (“[A]s a
5 reviewing court, we do not reweigh the evidence or attempt to draw alternative
6 inferences from the evidence.”). We decline to second guess the fact finder’s
7 assessment of Defendant’s English-speaking ability, and consequently, we reject
8 Defendant’s arguments.
9 {4} Accordingly, for the reasons stated in our notice of proposed summary
10 disposition and above, we affirm.
11 {5} IT IS SO ORDERED.
12 __________________________________
13 LINDA M. VANZI, Judge
14 WE CONCUR:
15 _________________________________
16 MICHAEL E. VIGIL, Judge
17 _________________________________
18 TIMOTHY L. GARCIA, Judge
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