Campbell v. State, 07-10-00333-CR
| Decision Date | 13 March 2012 |
| Docket Number | NO. 07-10-00333-CR,07-10-00333-CR |
| Parties | BRYAN MATTHEW CAMPBELL, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Court of Appeals of Texas |
FROM THE COUNTY COURT OF PARMER COUNTY;
NO. 11090; HONORABLE BONNIE JEAN CLAYTON-HEALD, JUDGE
Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.1
Appellant Bryan Matthew Campbell appeals from his jury conviction of the misdemeanor offense of driving while intoxicated and the resulting sentence of 120 days in jail, probated for twelve months, and a fine of $700.00. Through five issues, appellant contends the trial court reversibly erred. We will affirm.
An information charged appellant with driving and operating "a motor vehicle in a public place, to-wit: near intersection of CR B and FM 214, Parmer County, Texas, when the defendant did not have the normal use of defendant's mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body."
After a not-guilty plea, the State produced the testimony of a state game warden and a Department of Public Safety trooper. The game warden testified he and another warden were patrolling for "night hunters"2 about 11 p.m. on November 20, 2009. He saw a vehicle driving "erratically" and watched it for ten or fifteen minutes. He then saw the car disregard a stop sign where the county road entered the highway. The car fishtailed and one of its wheels came up off the ground. The warden stopped the car and identified the driver as appellant. Four minors were passengers. The warden testified he could smell alcohol and appellant told the warden he had consumed three beers that night. Appellant behaved belligerently toward the warden, and he formed the opinion appellant was intoxicated. The warden called DPS to handle the remainder of the DWI investigation.
The DPS trooper arrived some thirty-eight minutes after the warden stopped appellant. He testified that while talking with appellant, he noticed appellant's eyes were glassy and detected the odor of an alcoholic beverage on appellant's breath. Appellant also told the trooper he had drunk three beers. The trooper performed threefield sobriety tests and noted clues of intoxication on each. He told the jury that appellant was intoxicated, in his opinion.
The jury was shown a digital recording of the administration of the field sobriety tests, taken from the camera mounted on the dashboard of the DPS vehicle. The trooper placed appellant under arrest for DWI. Appellant refused to take a portable breath test and later refused to submit to an intoxilyzer test.
The jury found appellant guilty as charged in the information and punishment was assessed as noted. This appeal followed.
In appellant's first issue, he challenges the sufficiency of the evidence to show he operated a motor vehicle in a public place while intoxicated by not having the normal use of his mental or physical faculties.
We evaluate the sufficiency of evidence supporting criminal convictions under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010) (plurality opinion). That standard requires that we view all evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh theevidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
To establish the offense of driving while intoxicated, the State must prove the defendant was intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2011); Stoutner v. State, 36 S.W.3d 716, 721 (Tex.App.--Houston [1st Dist.] 2001, pet. ref'd). The Penal Code defines "intoxicated" as (1) "not having the normal use of mental or 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," or (2) "having an alcohol concentration of 0.08 or more." Tex. Penal Code Ann. § 49.01(2) (West 2011).
Appellant initially challenges the evidence supporting the jury's finding that appellant had lost the normal use of mental or physical faculties by reason of the introduction of alcohol. Tex. Penal Code Ann. § 49.01(2) (West 2011); Rios v. State, No. 07-09-00259-CR, 2010 Tex.App. LEXIS 8146 (Tex.App.—Amarillo Oct. 6, 2010, no pet.) (mem. op., not designated for publication). He first contends that the game warden's observations were insufficient to authorize the jury to find appellant was intoxicated. He then argues that even if the field sobriety tests administered by the DPS trooper demonstrated he was intoxicated at the time they were administered, the lapse of time between his driving and the administration of the tests renders the evidence he drove while intoxicated insufficient.
At the outset we note that appellant's argument suggests to us a wrong view of our task when evaluating the sufficiency of the evidence. We do not evaluate the evidence piecemeal. The Jackson v. Virginia standard requires that we consider "all of the evidence in the light most favorable to the verdict." 443 U.S. at 319 (emphasis ours). The sufficiency of the warden's testimony is not to be evaluated alone, nor that of the trooper. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (). Moreover, juries are permitted to draw reasonable inferences from evidence presented at trial. Hooper, 214 S.W.3d at 14, citing Jackson, 443 U.S. at 318-19.
Appellant accurately notes that the law requires a temporal link between the defendant's driving and his intoxication. See, e.g., Stoutner v. State, 36 S.W.3d at 721. The temporal link is thoroughly established by this record.3 As noted, the trooper arrived some thirty-eight minutes after the warden conducted the traffic stop. He conducted the field sobriety tests within a few minutes of his arrival. The events were recorded by video from the time the trooper arrived. The evidence gave the jury an informed basis to determine the relationship between appellant's driving and his asserted intoxication. Stoutner, 36 S.W.3d at 721. Appellant cites no authority for hiscontention the approximate forty-five minute delay between traffic stop and field sobriety tests renders the evidence insufficient, and we disagree with the contention.
Appellant effectively cross examined the warden, weakening his testimony before the jury, and not all of appellant's behavior after the traffic stop indicated intoxication. On cross examination, the warden could not identify precisely which mental or physical faculty he considered appellant was lacking during their encounter, and acknowledged that erratic driving is not necessarily an indicator of intoxication. The trooper similarly made concessions under appellant's effective cross examination, acknowledging that factors other than intoxication could explain appellant's performance on the sobriety tests. However, the jury as trier of fact was the sole judge of the credibility of the witnesses and the weight to be given the testimony. Cain v. State, 958 S.W.2d 404, 407-409 (Tex.Crim.App. 1997). It was free to accept or reject all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).
Both the warden and the trooper opined that appellant was intoxicated. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979) (); Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd) (same). The warden testified to appellant's erratic driving, speeding and fishtailing, the smell of alcohol, his admission of consumption of three beers, and his belligerent behavior. The trooper testified he noticed the smell of alcohol, appellant told him he drank three beers, appellant had glassy eyes and performed poorly on each of the administered field sobriety tests. The jury saw and heard appellant tell the officers, "Can't do it, man" as heattempted the one-legged stand. The video also shows appellant stumbled as he completed the walk and turn test. Finally, as noted, the jury heard appellant refuse to submit to breath or intoxilyzer tests, which under our law it could consider as evidence of guilt. Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App. 1988). Viewed in the light most favorable to the verdict, the evidence permitted rational jurors to find appellant was driving without the normal use of his mental or physical faculties.
Appellant next challenges the sufficiency of the evidence that he operated a motor vehicle in a public place. He couches this aspect of his sufficiency challenge as an assertion there was a material variance between the charging instrument, jury charge, and the evidence presented. The jury charge tracked the information, stating the allegation that appellant operated a motor vehicle "in a public place, to-wit: near intersection of CR B and FM 214, Parmer County, Texas." Appellant accurately asserts that no testimony mentioned a county road "B." The warden testified he saw appellant's vehicle driving on "County Road 13 in Parmer County" and he failed to obey the stop sign "at the paved road."
Although appellant correctly cites Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001), as...
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