James Albert Simmons v. State

cr1-025 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-025-CR





JAMES ALBERT SIMMONS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY

NO. 27,494, HONORABLE TIMOTHY G. MARESH, JUDGE PRESIDING

This is an appeal from a conviction for driving a motor vehicle in a public place while intoxicated. In a bench trial the court found the appellant guilty and assessed his punishment at confinement in the county jail for 180 days and a fine of $1,000.00. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions. Appellant gave notice of appeal.

Appellant urges a single point of error. He challenges the sufficiency of the evidence to support his conviction. His principal argument is that the evidence was not sufficient to show that he was intoxicated at the time of the accident in question.

Martin Odom was the State's first witness. He testified that on April 9, 1990, the appellant lived with him, his wife and his child in Georgetown; that on that date he, the appellant and a Bob Morgan were cleaning up trash and debris in his garage and yard; and that they took their first load to the dump during the noon hour. On their return to the Odom home, they stopped and purchased a six-pack of beer. Each man consumed two beers after they had returned to the Odom home and continued their work. About 3:30 p.m., they took their second load to the dump. Appellant Simmons was driving Odom's pickup truck. Upon returning, they stopped briefly at the dog pound, and then continued their journey. Along the way, the vehicle came to a sudden stop. Odom explained that he was seated in the middle and Morgan was on the passenger side of the truck; that he and Morgan had been "rough-housing" by butting each other's head; and that he split Morgan's head open. Morgan then pushed Odom into the appellant's lap causing the appellant to lose control of the vehicle. Odom believed that they hit a fence and garage. He did not have a good view at the time. Odom revealed that they drove to his house, got into Morgan's truck and returned to the scene of the accident. They did not stop but returned to Odom's home several blocks away. On direct examination, Odom testified that appellant was irate at Morgan, went into the Odom garage and began drinking from Odom's bottle of Jack Daniels' whiskey. Odom saw appellant take five or six gulps of whiskey in quick succession. Odom estimated that the accident occurred about 4:30 p.m. and that the officers did not arrive at his home for approximately twenty to thirty minutes thereafter. It was his testimony that appellant had nothing to drink except the two beers earlier in the day, and that the appellant was not impaired at the time of the accident.

Georgetown Police Officer Michael Whitehead testified that he received a dispatch at 4:39 p.m. and arrived at the scene of the accident at 4:45 p.m. He observed a damaged fence and building. After talking to a twelve-year-old girl and a man, Whitehead was led to a pickup truck at the Odom home. Whitehead related that when he arrived there at 4:49 p.m. he found the truck engine still warm and wood on the hood matching the damaged building. Whitehead called for a wrecker and began procedures for impoundment. He related that a woman approached and told him the former occupants of the vehicle were inside the residence. Whitehead then called for backup assistance. Officer Blair arrived and went to interview the men in the residence. When Blair returned with the three men, she reported that she had administered Miranda warnings to them. Appellant then stated that he had been the driver of the car. Whitehead detected a strong odor of alcohol on appellant's person, and observed that appellant's eyes were bloodshot, his speech was slurred, and he was unsteady on his feet. No field sobriety test was administered. Whitehead determined that appellant was intoxicated and arrested him. At the station, appellant refused a breath test and did not participate in the video tape.

Officer Whitehead admitted that his offense report reflected that the arrest took place at 5:25 p.m., but he believed that actually was the time he left the scene of the arrest. When pressed as to the time of appellant's arrest, the record reflects:

Q: What time was that was my question?

A: Sir, I don't know what time it was.

Q: So, it could have been any time just prior to 5:25?

A: That's correct.

Q: And so, not knowing what time the accident occurred, it could have been anywhere within an hour. Is that right?

A: That's correct.

Officer Rhonda Blair testified that she responded to Officer Whitehead's call for assistance. When she arrived about five minutes later, she was asked to contact the suspects in the area. She found three men arguing outside the Odom residence. Two of the men were Odom and the appellant. Both told her appellant had been driving the pickup truck. Blair revealed that appellant had a strong odor of an alcoholic beverage on his breath, his eyes were red and glassy, and he was unsteady on his feet. She asked the men to accompany her to the alleyway where Whitehead was inventorying the pickup truck. Whitehead placed the appellant under arrest. The other two men were not arrested. Like Officer Whitehead, Blair could not pinpoint the exact time the arrest took place. It was at 5:25 p.m. as the offense report indicated or before that time.

Appellant generally corroborated Odom's testimony. He denied that he was intoxicated at the time of the accident. He related that after the accident he was "irate at Morgan" and went into Odom's garage and got Odom's whiskey bottle. He had four or five shots of the whiskey "straight." Thirty to forty-five minutes later, when he came out of the garage, he saw Officer Blair and tossed the whiskey bottle back into the garage. He estimated that he was arrested between 5:30 and 6:00 p.m. Appellant admitted that he was beginning to feel "good" and was impaired at the time of his arrest by virtue of his drinking after the accident.

In reviewing a challenge to the sufficiency of the evidence, this Court must view all the evidence in the light most favorable to the verdict or judgment, and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Butler v. State, 769 S.W.2d 234, 237-39 (Tex. Crim. App. 1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex. Crim. App. 1984). This standard for review is applicable in both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986). See Geesa v. State, No. 290-90 (Tex. Crim. App., November 6, 1991). The burden of proof in a criminal case is on the State to prove every element of the offense beyond a reasonable doubt, whether the State is relying on circumstantial or direct evidence. Johnson v. State, 673 S.W.2d 190, 194 (Tex. Crim. App. 1984).

It must be kept in mind that in a bench trial the trial court is the trier of facts, and the judge of the credibility of the witnesses and the weight to be given to their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). As the trier of fact, the trial court is entitled to accept or reject any part or all of the testimony given by the witnesses for the State or the accused. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). The reconciliation of evidentiary conflicts will not require a reversal if there exists sufficient evidence to prove the elements of the offense. Id.

The gravamen of the offense of driving while intoxicated under Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Supp. 1991) is the operation of a motor vehicle in a public place, while intoxicated. Kennedy v. State, 797 S.W.2d 695, 696 (Tex. App. 1990, no pet.); Weaver v. State, 721 S.W.2d 495, 498 (Tex. App. 1986, pet. ref'd). To sustain a conviction for driving while intoxicated, the evidence must show that the accused (1) drove the vehicle, (2) while intoxicated, (3) in a public place, such as a public road or highway. Nelson v. State, 628 S.W.2d 451, 453 (Tex. Crim. App. 1982); Johnson v. State, 517 S.W.2d 536, 538 (Tex. Crim. App. 1975). The State may prove intoxication by showing that the accused did not have the normal use of his physical or mental faculties by reason of the introduction of alcohol into the body. Tex. Rev. Civ. Stat. Ann. art. 6701l-1(a)(2)(A) (Supp. 1991).

The information in the instant case in pertinent part alleged that the appellant on or about April 9, 1990,

did then and there unlawfully drive and operate a motor vehicle in a public place within said County, to wit: on a public street or highway, when the said Defendant did not then and there have the normal use of mental and physical faculties by reason of the introduction of alcohol into the body.

The appellant contends that the evidence was insufficient to prove that he was intoxicated at the time he was driving because of the time lapse between the time of the accident and the time the police arrived and placed him under arrest at the Odom home. Appellant argues that the only evidence that he was intoxicated was at the time he was placed under arrest and that the evidence reveals he had been drinking after the accident. The time lapse is not certain. Odom placed the accident at 4:30 p.m. The accident was reported to the police at 4:35 p.m. Officer Whitehead received a dispatch at 4:39 p.m. and arrived at the accident scene at 4:45 p.m. Whitehead arrived at the Odom home at 4:49 p.m., but he did not see and place the appellant under arrest until later. The offense report indicated that the arrest took place at 5:25 p.m. which placed the arrest at approximately fifty-five minutes after the accident. Neither Officer Whitehead nor Officer Blair could pinpoint the exact time, but felt it was sometime before 5:25 p.m. The appellant testified that his arrest occurred after 5:30 p.m., and he had been drinking after the accident for thirty to forty-five minutes before he saw Officer Blair.

Evidence that a defendant was intoxicated at the time he was arrested is not sufficient, by itself, to prove that the defendant was intoxicated at the time of the driving. Weaver, 721 S.W.2d at 499. Save for the fact that appellant consumed two beers earlier in the day, there was no evidence that he was intoxicated at the time of the accident. Both Odom and the appellant testified that he was not intoxicated at that time. There was no expert testimony to explain absorption and metabolization rates of intoxication to dispel the reasonable possibility appellant became intoxicated only after the accident.

Viewing the evidence in the light most favorable to the judgment, we conclude under the "rationality" test that the State failed to prove an essential element of the offense charged -- that appellant was intoxicated at the time he was driving the automobile involved in an accident. See McCafferty v. State, 748 S.W.2d 489, 492 (Tex. App. 1988, no pet.); see also Johnson v. State, 517 S.W.2d 536, 538 (Tex. Crim. App. 1975); Coleman v. State, 704 S.W.2d 511, 512 (Tex. App. 1986, pet. ref'd). Weaver, 721 S.W.2d at 499, is distinguishable because in Weaver the officer arrived at the scene within minutes of the accident, and therefore, there was not a reasonable possibility that the defendant, who appeared intoxicated to the officer upon arrival, became intoxicated after the accident. We hold the evidence to be insufficient to support the conviction. Appellant's point of error is sustained.

The judgment is reversed and the appellant is ordered acquitted. Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).

John F. Onion, Jr., Justice

[Before Justices Powers, Jones and Onion^*]

Reversed and Reformed

Filed: November 27, 1991

[Do Not Publish]

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).