DocketNumber： 09-04-00500-CR
Filed Date： 8/31/2005
Status： Precedential
Modified Date： 9/9/2015
A jury convicted appellant William Jeffery Stallworth of boating while intoxicated. See Tex. Pen. Code Ann. § 49.06 (Vernon 2003). The jury sentenced Stallworth to 180 days of confinement in the Montgomery County Jail and fined him $180.00. In two issues, Stallworth asserts the trial court committed error in allowing evidence of an extraneous offense, and that the evidence is factually insufficient to support his conviction. Finding no error, we affirm.
Game Wardens Brannon Meinkowsky, Justin Hurst, and Intern Ellis Powell observed Stallworth driving a boat at a high rate of speed. While approaching the boat after it stopped, Warden Meinkowsky grabbed the boat and felt a wet and slightly sticky substance that he assumed was an alcoholic beverage based on its odor. Intern Powell also held the boat, saw beer on the side of the boat, and felt beer running down his hand.
When Warden Hurst boarded the boat, he smelled alcohol on Stallworth's breath and observed that Stallworth's eyes were watery. The wardens noticed beer and bottle caps on the floor of the boat. Warden Hurst asked Stallworth if he had been drinking and Stallworth replied, "No. Absolutely nothing. I don't drink."
Warden Hurst administered three boat sobriety tests on Stallworth. Stallworth had to recite the alphabet without singing. Warden Hurst testified:
The Defendant did the following: A B C D E F G H I J K L M N O, there was a pause, I J K L M, there's another pause, and then Q S T. [H]e said he was unable to continue, he was unable to do his ABCs.
Stallworth also had to count backwards from thirty-seven to seventeen. Stallworth performed this test by stating, "37 36 35 34 33 32 31 29 30 29 21 19 18 17 16 15 14." Stallworth also had to perform a finger count test. According to Warden Hurst, "[Y]ou start with your thumb, count one, two, three, four, four, three, two, one, one, two, three, four, four, three, two, one." Warden Hurst testified Stallworth tried to perform the test but he was not successful in completing the test. When Warden Hurst asked Stallworth to perform the palm pat exercise, he refused to perform the test. Warden Hurst testified that based on Stallworth's performance on the sobriety tests, his slurred speech, his swaying, his watery eyes, the alcoholic odor on his breath, and the beer located on the boat, he determined Stallworth had lost the normal use of his mental and physical faculties.
When asked to put on his life vest and board the wardens' boat, Stallworth had difficulty putting on and buckling the vest. Upon arriving at the dock, Stallworth had difficulty moving from the boat to the dock. Warden Hurst had to "help [Stallworth] out of [the] boat due to his apparent lack of balance." Stallworth "seemed off balance and swayed while walking to the office." Intern Powell testified that Stallworth "had an unsteady gait." Upon arriving at the building, Stallworth refused to perform more field sobriety tests. Stallworth also refused to take a breath test or sign a form acknowledging his refusal to take the test.
Warden Hurst and Intern Powell inventoried Stallworth's boat and found an ice chest filled with "three unopened Corona beer bottles, one empty Corona beer bottle, four Corona beer bottle caps, one open . . . Miller Lite beer bottle, one empty Miller Lite beer bottle, one Miller Lite beer bottle cap, and one plastic cup that was half full of beer." In front of the steering wheel, near the radio, Warden Hurst found a roach clip with residue, the top of a cologne bottle with ash residue that smelled like marihuana, a lighter, and a box of cigarettes.
Lisa Poret, Stallworth's sister, testified she and her friends used the boat earlier in the day. Poret docked the boat on the lake near Stallworth's home and called him so he could locate the boat and move it. Poret testified she had beer on the boat.
In issue one, Stallworth argues the trial court erred in allowing evidence of extraneous acts in the form of testimony regarding the marihuana and drug paraphernalia found in the boat. The trial court allowed Warden Hurst to testify that he found a roach clip on Stallworth's boat, and the clip contained residue that smelled like marihuana.
"An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). It is an offense that is "extra, beyond, or foreign to the offense for which the party is on trial." Id. at 926-27. It is an offense for which the defendant has no notice he will be called upon to defend against it. Id. at 927.
Stallworth was charged with operating a watercraft while intoxicated. See Tex. Pen. Code Ann. § 49.06. In the charging instrument, "intoxicated" was defined as "not hav[ing] the normal use of . . . mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into [the] body[.]" Testimony regarding a roach clip with residue that smells of marihuana was not evidence of an extraneous offense; it was evidence of the charged offense of intoxication by reason of a drug, alcohol, or a combination of both. See Manning, 114 S.W.3d at 927. Because Stallworth was charged with intoxication by drug use, he had notice that such evidence would be offered. See id. Issue one is overruled.
In his second issue, Stallworth challenges the factual sufficiency of the evidence to support his conviction. The Court of Criminal Appeals has recently restated the standard for reviewing factual sufficiency as follows:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (footnote omitted). We must give due deference to the jury's determination concerning the weight and credibility of the evidence, and we will reverse the jury's determination only to arrest the occurrence of a manifest injustice. Brewer v. State, 126 S.W.3d 295, 297 (Tex. App. -- Beaumont 2004, pet. ref'd) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003)).
Additional evidence exists that may be considered contrary to the verdict. Warden Hurst's testimony regarding his incident report indicated Stallworth displayed no unusual actions, the color of his face was normal, and he had a talkative attitude. Stallworth told Warden Hurst he last visited a doctor for allergies, and argues his allergies caused his eyes to water. Warden Hurst testified he did not see who put the beers in the ice chest and he did not find any bottle openers during the inventory. Warden Hurst testified there was no DNA test conducted on the cup to determine whether Stallworth drank beer from it. Warden Hurst testified Stallworth did not go to the bathroom during the two hours he was detained and that in some people, frequent urination is a symptom of alcohol consumption.
Warden Hurst testified the roach clip was not tested for marihuana residue. Warden Hurst also testified that roach clips are used to hook wires to electrical connections and he was aware that Stallworth was an automobile technician. Warden Hurst did not charge Stallworth with possession of marihuana because he did not find any marihuana.
Reviewing all the evidence in a neutral light, we conclude that the evidence supporting the verdict, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that guilt cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. The wardens found beer, bottle caps, and drug paraphernalia on Stallworth's boat, smelled alcohol on Stallworth's breath, and observed Stallworth's watery eyes, slurred speech, and lack of normal balance while walking. In addition, Stallworth failed to successfully perform three field sobriety tests. The evidence was sufficient to find Stallworth guilty of boating while intoxicated. See Tex. Pen. Code Ann. § 49.06. Issue two is overruled and the judgment is affirmed.
AFFIRMED.
___________________________
HOLLIS HORTON
Justice
Submitted on August 1, 2005
Opinion Delivered August 31, 2005
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.