Casel v. State
| Decision Date | 29 April 2022 |
| Docket Number | 12-21-00060-CR |
| Parties | BILLY TREMAYNE CASEL, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
DO NOT PUBLISH
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct No. 007-1635-19)
Panel consisted of Worthen, C9.J., Hoyle, J., and Neeley, J.
Brian Hoyle Justice.
Billy Tremayne Casel appeals his conviction for driving while intoxicated, third or more. He presents six issues on appeal. We modify and affirm as modified.
Appellant was indicted for driving while intoxicated, third or more alleged to have been committed on March 2, 2019 in Smith County, Texas.[1] It was further alleged in the indictment that Appellant had previously been convicted of two prior felonies under the habitual offender statute.[2] Appellant pleaded "not guilty," and the matter proceeded to a jury trial. The jury found Appellant "guilty" as charged. Appellant elected to have the trial court assess punishment. At the punishment phase of trial, Appellant pleaded "true" to the enhancement paragraphs. The State filed a motion to cumulate Appellant's sentence with his twenty-year sentence for evading arrest that arose from the same incident. At the conclusion of the punishment phase, the trial court assessed punishment at fifty-years imprisonment. The trial court also granted the State's motion to cumulate sentences. This appeal followed.
In his first issue, Appellant contends the evidence is insufficient to support his conviction. Specifically, he urges the State failed to prove that he was operating the vehicle in question and that he was intoxicated at the time of the alleged operation.
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Bohannan v State, 546 S.W.3d 166, 178 (Tex. Crim. App. 2017). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008); see Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) ( that role of fact finder is "as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence"). The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. Rivera v. State, 507 S.W.3d 844, 853 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd); see Bohannan, 546 S.W.3d at 178 ().
We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Bohannan, 546 S.W.3d at 178; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistences in the evidence in favor of the verdict. Bohannan, 546 S.W.3d at 178; see also Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) (). A criminal conviction may be based on circumstantial evidence. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.
To satisfy the elements of DWI, the State was required to prove that Appellant operated a motor vehicle in a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2021). "Intoxicated" is defined as "(A) 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 (B) having an alcohol concentration of 0.08 or more." Id. § 49.01(2) (West 2011). For the evidence to be sufficient to support a conviction for DWI, a "temporal link" must exist between the defendant's intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). This temporal link may be established by circumstantial evidence. Id. ().
Officer Gregory McCullough of the Tyler Police Department testified that he responded to a welfare call by a concerned citizen regarding a possible intoxicated driver. When he arrived, Officer McCullough observed the suspected vehicle in the parking lot, a red Dodge Charger. The vehicle's driver backed up and moved forward several times, as if trying to get into a parking spot appropriately. According to McCullough, the vehicle moved approximately "a foot and a half" back and forward each time even though the vehicle was already lined up with the parking spot. Appellant then exited the driver's seat. McCullough's dash cam video, which was admitted into evidence, depicted the vehicle moving in the parking spot. The video also showed Appellant. While several feet from the vehicle, McCullough smelled alcohol coming from the vehicle.
When making contact with Appellant, a struggle ensued after Appellant resisted arrest and refused to comply with officer requests. During the struggle, McCullough smelled marijuana on Appellant. According to Officer McCullough, no field sobriety tests were performed because Appellant had fallen to the ground during the struggle. The officers wanted to make sure Appellant was not injured. Appellant was evaluated by emergency medical personnel. McCullough explained that field sobriety test results would be invalid if Appellant suffered some sort of injury. Officer McCullough testified that there was damage to the front right of Appellant's vehicle, consistent with striking a curb or involvement in some sort of accident. During the search of the vehicle, officers found an open bottle of beer. They also found a baggie of marijuana in Appellant's sweater. The officers asked for a blood sample at the hospital, and Appellant refused. Therefore, they obtained a warrant for a blood draw.
Officer David Russ of the Tyler Police Department testified that he was dispatched to Family Dollar on Loop 323 on March 2, 2019. The call was initially in response to a suspicious vehicle that was involved in a minor crash in a parking lot. He believed the vehicle had struck a curb. According to Officer Russ, the 911 caller said the vehicle had been stuck in a ditch, and the caller saw open containers in the vehicle and smelled marijuana. When he arrived on scene, Officer Russ noted "fresh front end damage" on the car. He further observed the vehicle in motion, as if it was attempting to back into a parking spot. Appellant then stepped out of the driver's seat of the vehicle. According to Officer Russ, Appellant smelled like alcohol. Appellant was transported to the hospital where he was examined for injuries. When Appellant refused to provide a blood sample, Officer Russ began the process of obtaining a blood sample warrant and completed a probable cause affidavit. A judge signed the warrant approximately two hours after the initial dispatch call. Appellant continued to be uncooperative at the hospital even after the warrant's issuance. A nurse with the Smith County Sheriff's Office was eventually able to obtain the blood draw approximately four hours after initial dispatch.
A recording of the 911 call was admitted into evidence and played for the jury. According to the caller, a red Charger skidded off the roadway into the ditch and pulled into the Family Dollar parking lot. The caller reported open containers in the car and stated that the driver appeared intoxicated. The caller further claimed that the driver smelled like what he believed to be marijuana. The caller stated that he was no longer in the parking lot because the driver cursed at him. Therefore, he called authorities and left. The caller did not testify at trial.
Karen Shumate of the Tyler crime lab testified that the blood draw requested analysis for alcohol and volatiles content. She further testified that she began the analysis on May 3, 2019. The test result showed blood alcohol concentration of 0.160. The standard for intoxication in Texas is 0.08.
Appellant argues the State failed to prove he was operating a vehicle. The Penal Code does not define "operate" or "operating." To assess the sufficiency of the evidence to support this element of the offense of DWI, the Court of Criminal Appeals has defined "operate" as "taking 'action to affect the function of [a] vehicle in a manner that would enable the vehicle's use.'" Kirsch v. State, 357 S.W.3d 645, 648 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)). Courts consider the totality of the circumstances in determining whether sufficient evidence supports a conclusion that the defendant operated the vehicle. Denton...
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