Silva, Guadalupe Humberto v. State

Affirmed and Memorandum Opinion filed February 12, 2004

Affirmed and Memorandum Opinion filed February 12, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00403-CR

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GUADALUPE HUMBERTO SILVA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 926,511

M E M O R A N D U M O P I N I O N

Appellant Guadalupe Humberto Silva appeals from his felony conviction for driving while intoxicated.  He was convicted by a jury, and punishment was assessed at twenty-five years= confinement.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm.

Appellant raises six issues in this appeal: (1) whether the trial court erred in admitting a witness= lay opinion that appellant was intoxicated; (2) whether the trial court erred in

refusing to admit the document evidencing his wife=s payment for services rendered by a key witness against him; whether the evidence was (3) legally and (4) factually sufficient to support the finding that he had lost the normal use of his mental and physical faculties; and whether the evidence was (5) legally and (6) factually sufficient to support the finding that he had operated a vehicle while intoxicated.  In resolving these issues below, we consider appellant=s third issue along with his fourth, and his fifth issue along with his sixth.

In his first issue, appellant argues that the trial court erred in admitting Jamal Al-Zibdeh=s lay testimony that he was intoxicated because Al-Zibdeh was not properly qualified to render such an opinion. Under Rule 701 of the Texas Rules of Evidence, an opinion must be (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness= testimony or the determination of a fact at issue. Tex. R. Evid. 701 (a) and (b).  Whether lay opinion testimony meets the requisites of Rule 701 is within the sound discretion of the trial court.  Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).  If there is evidence in the record supporting the trial court=s decision to admit or exclude the testimony under Rule 701, there is no abuse of discretion, and we must defer to that decision.  Id.

Appellant argues that, in order to be considered properly qualified to render such an opinion, a lay witness must have observed intoxicated persons on previous occasions, citing Vaughn v. State, 493 S.W.2d 524 (Tex. Crim. App. 1972).  But Vaughn does not stand for that proposition.  To the contrary, the court there held that a witness need not be an expert to render an opinion as to whether the person he observed was intoxicated. Id. at 525.

The evidence presented to the trial court here was both rationally based on the witness= perceptions and helpful in determining whether appellant was intoxicated at the time he operated a vehicle.  Al-Zibdeh testified that appellant had a strong odor of alcohol about him and was unable to maintain his balance just minutes after exiting the vehicle.  He also observed appellant=s inability to successfully perform the field sobriety tests administered

by the officer at the scene. Therefore, we hold the trial court did not abuse its discretion in admitting Al-Zibdeh=s testimony that appellant was intoxicated and overrule appellant=s first issue.

In his second issue, appellant argues that the trial court erred in refusing to admit the document evidencing his wife=s payment for the towing service rendered by Al-Zibdeh, who was a key witness against him.  He contends that because this evidence establishes a motive for bias on the part of the witness, the trial court=s refusal constitutes a violation of his federal constitutional right to confrontation and cross-examination.  We disagree.

The Confrontation Clause of the United States Constitution guarantees the right of the accused in a criminal prosecution Ato be confronted with the witnesses against him.@ U.S. Const. amend. VI. The Supreme Court of the United States has repeatedly held that the Sixth Amendment does not require unlimited cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986).  A court may restrict cross-examination so long as the jurors receive sufficient information to assess the credibility of a witness.  Id. at 679.  Thus, a limitation upon cross-examination does not violate the Sixth Amendment unless the excluded testimony would have affected the jury=s impression of the witness= credibility.  Id. at 681.

In the present case, the trial court did not permit appellant to introduce into evidence the bill his wife had to pay Al-Zibdeh, the tow truck operator.  According to appellant, the jury was entitled to examine the bill for themselves in determining the credibility of Al-Zibdeh.  But other admitted evidence already had established Al-Zibdeh=s motive to incriminate appellant.  Al-Zibdeh himself testified that he waited around after the arrest so that he could tow appellant=s vehicle and that he had received 83 dollars for his services. Because the document would have been cumulative of evidence already admitted, we find that the jury had sufficient information to assess the credibility of Al-Zibdeh.  The exclusion

thus did not affect the jury=s impression of the witness= credibility.  Accordingly, appellant=s second issue is overruled.

In his third and fourth issues, appellant argues that the evidence is legally and factually insufficient to support a finding that he had lost the normal use of his mental and physical faculties.  He contends, as did the appellant in Massie v. State, 744 S.W.2d 314, 316 (Tex. App.CDallas 1988, pet. ref=d), that there is no evidence of his normal use of his faculties and thus no proof that he lost the normal use of them as alleged by the State. In Massie, the court held that no proof of a particular defendant=s faculties was required, stating:

We do not construe an allegation that appellant did not have normal use of his mental and physical faculties the same as an allegation that appellant did not have his normal use of his faculties.  The former allegation does not require proof of the defendant=s normal abilities.  Rather, it means that the faculties which must be tested belong to appellant.  If there was evidence that appellant could not use his faculties on the occasion in question, in the manner in which the normal non-intoxicated person would be able to use his faculties, the evidence is sufficient to convict him unless the jury finds that his inability to perform on that occasion is not due to intoxicants.

Id.  Other courts have followed this reasoning. See, e.g., Reagan v. State, 968 S.W.2d 571, 572 (Tex. App.CTexarkana 1998, pet. ref=d); Fogle v. State, 988 S.W.2d 891, 892 (Tex. App.CFort Worth 1999, pet. ref=d); Railsback v. State, 95 S.W.3d 473, 484 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).  We find this reasoning persuasive as well.

In the present case, Officers Mark Smith and Richard Martinez of the Houston Police Department testified appellant failed each of the field sobriety tests they administered, including the Romberg test, the one-leg-stand test, the walk-and-turn test, and the horizontal gaze nystagmus (AHGN@) test.  These tests challenge one=s ability to use his mental and physical faculties in the manner of a normal non-intoxicated person.  Because of his failure on the tests and the fact that appellant did not present any evidence attributing such failure to another cause, we hold that the evidence is both legally and factually sufficient to support the finding that appellant had lost the normal use of his mental and physical faculties. Accordingly, we overrule appellant=s third and fourth issues.

In his fifth and sixth issues, appellant argues the evidence is legally and factually insufficient to support his conviction because the State failed to prove that he operated a

vehicle while intoxicated. Specifically, he challenges the credibility of Al-Zibdeh in connection with these issues.^[1]  We apply the usual standards of review for legal and factual sufficiency. See Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency).

The State=s evidence at trial established the fact that appellant had operated a vehicle while intoxicated.  Al-Zibdeh testified he observed, through his rear-view mirror, appellant lose control of his car, nearly strike Al-Zibdeh=s vehicle, and veer to the other side and hit the curb, causing minimal damage to appellant=s vehicle.  According to Al-Zibdeh, appellant then parked near a taco stand outside a convenience store.  Approximately three minutes after he called the police, Al-Zibdeh Aflagged down@ a police officer and observed the administration of field sobriety tests to appellant.  Al-Zibdeh perceived appellant=s strong odor of alcohol, and observed that appellant had great difficulty maintaining his balance.  Officer Smith confirmed appellant=s strong odor of alcohol and observed his slurred words, inability to maintain his balance, and his failure of all field sobriety tests.  Finally, Officer Martinez testified appellant failed the HGN test as well as a battery of other field sobriety tests at the intoxilyzer facility.  This evidence is legally sufficient to prove that appellant operated a vehicle while intoxicated.

Against this evidence, appellant established that Al-Zibdeh was paid 83 dollars for towing appellant=s vehicle.  Appellant=s wife, Ana Louisa Silva, testified her husband had not been drinking on the date in question and his vehicle had sustained no apparent damage. Appellant himself largely confirmed the sequence of events through his testimony, but disputed the timing of events as alleged by the State and asserted he had not been drinking alcohol that day.  This evidence is factually sufficient to support appellant=s conviction for operating a vehicle while intoxicated.  Accordingly, we overrule appellant=s fifth and sixth issues.

The judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 12, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note that this court may not re-evaluate the weight and credibility given to the evidence and thereby substitute our judgment for that of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). However, we nevertheless address the sufficiency issues at the level of generality initially raised by appellant.