Chaloupka v. State, 06-99-00046-CR

• Decision Date: 18 April 2000
• Docket Number: No. 06-99-00046-CR,06-99-00046-CR
• Citation: Chaloupka v. State, 20 S.W.3d 172 (Tex. App. 2000)
• Parties: (Tex.App.-Texarkana 2000) FRANK MICHAEL CHALOUPKA, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 172

20 S.W.3d 172 (Tex.App.-Texarkana 2000)

FRANK MICHAEL CHALOUPKA, Appellant v.THE STATE OF TEXAS, Appellee

No. 06-99-00046-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted February 29, 2000

Decided April 18, 2000

On Appeal from the 5th Judicial District Court Bowie County, Texas Trial CourtNo. 98-F-636-5

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Grant

Frank Michael Chaloupka was convicted of felony driving while intoxicated and sentenced to five years in the state penitentiary.

Chaloupka waived his right to jury by trial, and a bench trial was held.Chaloupka pleaded not guilty, but was found guilty by the judge.Chaloupka contends on appeal that there was insufficient evidence on which to convict him.

Chaloupka does not specify in his appeal whether he is challenging the legal sufficiency or the factual sufficiency.We may only consider the factual sufficiency of the evidence if the issue is properly raised.Clewis v. State, 922 S.W.2d 126, 133(Tex. Crim. App.1996).In his brief, Chaloupka asks this Court to examine the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found him guilty of all elements of the offense beyond a reasonable doubt.This is the standard of review for legal sufficiency.Chaloupka never requests that this Court review the factual sufficiency of the evidence, mentions the standard of review for factual sufficiency, or cites cases concerning factual sufficiency.By making only a global sufficiency of the evidence point and citing only legal sufficiency standards, only a legal sufficiency complaint has been raised on appeal.Davila v. State, 930 S.W.2d 641(Tex. App. El Paso1996, pet. ref'd);see alsoMarkey v. State, 996 S.W.2d 226, 229(Tex. App. Houston[14th Dist.]1999, no pet. h.);Martinets v. State, 884 S.W.2d 185, 188-89(Tex. App. Austin 1994, no pet.)(opinion on reh'g).Chaloupka's issue on appeal is, therefore, a complaint that the evidence was legally insufficient.

Section 49.04 of the Texas Penal Code provides that a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.Tex. Pen. Code Ann. 49.04(Vernon Supp. 2000).There must be a concurrence of the elements for a crime to have been committed.If a person is intoxicated, but sitting in a parked vehicle, then Texas courts have held that the proof was not legally sufficient to convict a defendant for driving while intoxicated, since the person was not driving or operating the vehicle, even though the person was intoxicated.Ballard v. State, 757 S.W.2d 389(Tex. App. Houston [1st Dist.]1988, pet. ref'd);Reddie v. State, 736 S.W.2d 923(Tex. App. San Antonio1987, pet. ref'd).In the same fashion, the Houston court of appeals held that "[i]ndications that the accused was intoxicated at the time the police arrived do not in themselves prove such intoxication at the prohibited time, i.e., when the accused was driving."Weaver v. State, 721 S.W.2d 495, 498(Tex. App. Houston [1st Dist.]1986, pet. ref'd).There must be evidence beyond a reasonable doubt not only that the defendant had been driving a motor vehicle and was intoxicated when the police arrived, but that the defendant had been intoxicated while driving the vehicle.

The standard in reviewing the legal sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Webb v. State, 801 S.W.2d 529(Tex. Crim. App.1990).The appellate court views the evidence in the light most favorable to the verdict, whether the case was proven by direct or circumstantial evidence.Houston v. State, 663 S.W.2d 455(Tex. Crim. App.1984).

Chaloupka was traveling westbound on Interstate 30 around the New Boston area.Two witnesses testified that Chaloupka was speeding and driving erratically.Chaloupka's vehicle left its lane of the roadway, entered the adjoining lane, hit a vehicle owned by James Davidson, and then swerved back into his own lane.After the collision, Davidson stopped to check the damage to his vehicle, but Chaloupka continued driving westbound at a high rate of speed.

A witness to the accident, Ted Brewster, followed Chaloupka in an effort to write down Chaloupka's license plate number.Brewster was able to get the license number, then pulled over to wait until Davidson's vehicle passed.When Davidson passed, Brewster flagged him down and gave him the information.Just after Brewster drove off, a Texas Department of Public Safety(D.P.S.) trooper contacted Davidson and informed him that another D.P.S. trooper believed he had the other person involved in the collision stopped at a rest area.

Another witness to the collision, Bobby Don Cox, Jr., was driving an eighteen-wheeler and dialed 9-1-1 after the collision occurred.Cox did not get the license plate number of the vehicle that had caused the collision.After Cox notified the police of the collision, he also notified other truckers of the collision by C.B. radio, and asked if one of them could get the license plate number.Another trucker was able to get the license plate number and give it to Cox, which he in turn gave to the police.Cox had lost sight of the vehicle, but some time later, another trucker informed Cox that the vehicle was exiting into a rest area beside the highway.Cox also exited and called the police again, and then he waited at the rest area until the police could arrive.

Cox testified that Chaloupka got out of his vehicle holding two bottles of beer and carrying a paper sack.He testified that Chaloupka was stumbling and had difficulty maintaining his balance as he got out of his vehicle and walked to a picnic table.Cox testified that Chaloupka sat on a bench and began to drink from one of the beer bottles.Chaloupka also proceeded to urinate in public next to the picnic table, although there were restrooms available.

When Trooper Lance Cline arrived at the rest area, Cox pointed out Chaloupka.Trooper Cline testified that Chaloupka was sitting at a bench with five empty beer bottles...