Collins v. State

• Decision Date: 31 August 2018
• Docket Number: NO. 03-17-00132-CR,03-17-00132-CR
• Parties: Kelly Sue Collins, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Kelly Sue Collins, Appellant v. The State of Texas, Appellee

NO. 03-17-00132-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 31, 2018

FROM THE COUNTY COURT AT LAWNO. 2OF WILLIAMSON COUNTY

NO. 15-05823-2, THE HONORABLE LAURA B. BARKER, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellantKelly Sue Collins of driving while intoxicated, seeTex. Penal Code § 49.04(a), and the trial court assessed her punishment at confinement for 365 days in the county jail, seeid.§ 49.09(a), but suspended imposition of the sentence and placed her on community supervision for 20 months, seeTex. Code Crim. Proc. art. 42A.053(a)(1).On appeal, appellant challenges the sufficiency of the evidence supporting her conviction and complains about the fine amount ordered in the written judgment of conviction.Finding no reversible error, we sustain appellant's complaint about the fine, modify the judgment of conviction accordingly, and affirm the trial court's judgment of conviction as modified.

BACKGROUND

On the night of August 28, 2015, appellant left her boyfriend's residence in her White Chevrolet Malibu to go to the store get ice and cigarettes.¹She had driven about a quarter mile when she lost traction on the road and slid through a stop sign into an intersection.²Appellant then attempted to correct her position by reversing but backed her car onto the guardrail on the side opposite of the road.Appellant got out of the immobilized car and removed her dog from inside.The record indicates that a neighbor stopped at the accident scene and spoke to appellant, who was "acting hysterically," so the neighbor called 911.

Appellant called her boyfriend and "hysterically" informed him of her predicament.She then walked back to her boyfriend's house.She left the car's engine running, left the car unlocked, and left her purse in the car.Appellant's boyfriend went with his brother to the intersection to assess the situation.One of them entered appellant's car and turned off the engine.

John Pokorny, a deputy with the Williamson County Sheriff's Office, was dispatched at 9:44 p.m. to the scene of a motor vehicle accident and a report of people fighting.The deputy immediately activated his emergency lights and sped to the location.As he traveled, he received an update from the dispatcher notifying him that there was no longer fighting at the scene.Deputy Pokorny arrived at the accident scene at 9:48 p.m.He found appellant's car lodged on the guardrail and the two brothers standing near it.Deputy Pokorny confirmed that no one was fighting, and discussed with the two men what had happened.At his request, appellant's boyfriend calledappellant to have her return to the scene.The deputy testified that the distance from the boyfriend's house to the accident scene was "a short walk" taking, at a slow pace, "probably three minutes maybe."

While waiting for appellant to return to the scene, Deputy Pokorny asked the men if appellant had been drinking.Appellant's boyfriend started to admit that they had been drinking for several hours, but then stopped and corrected himself before implicating appellant.³Her boyfriend then denied knowing if appellant was intoxicated.Appellant arrived back at the scene about seven minutes after her boyfriend called her, which was approximately 14 minutes after Deputy Pokorny responded to the dispatch call and activated his emergency lights and the dash-cam recorder in his patrol car.The deputy asked appellant what had happened.As she told him, he noticed a "strong odor of metabolized alcohol" on her breath.Deputy Pokorny explained that, in his experience, alcohol has a "distinctive odor" after the body metabolizes it.According to the deputy, that smell would not come from someone who drank alcohol recently or a few minutes prior.Instead, that odor would only be present if someone had already metabolized the alcohol by the process of digestion.Deputy Pokorny also observed that appellant was "unsteady on her feet."Because she had been in an accident, however, the deputy did not begin an investigation into appellant's intoxication before EMS had an opportunity to examine her.⁴Because the deputy suspected that appellant wasintoxicated and had been at the time of the accident, he turned the case over to Nathan Fox, a trooper with the Department of Public Safety, who arrived at the scene about 20 minutes after Pokorny, to investigate whether appellant had been driving while intoxicated.

Trooper Fox arrive on the scene at 10:09 p.m.He spoke with appellant's boyfriend and his brother, and they told him that the accident happened about 20 minutes prior to Fox's arrival.In addition, one of the men commented that Deputy Pokorny had arrived "very quickly" after the accident.The two men explained that they had walked approximately a quarter mile from their house to the accident scene after appellant called them.Trooper Fox conceded that "the math [didn't] add up" regarding the accident occurring 20 minutes before his arrival, as that 20-minute time frame suggested that the accident happened approximately five minutes before the 911 call about the accident was received.He explained, though, that from his exchange with the men, he understood the accident to have happened immediately before the 911 call was made.Also, based on that exchange, he understood that the men came to the accident scene immediately after appellant's accident.

Trooper Fox also spoke to appellant about what had happened.She told him that she slid through the intersection at the stop sign and then backed up over the guardrail.Appellant admitted to the trooper that she had had "a couple" of Miller Lite beers to drink.During their contact, Trooper Fox noticed that appellant had watery eyes and slurred speech.He asked appellant to perform standardized field sobriety tests, which she failed.She exhibited the maximum possible number of clues on the horizontal gaze nystagmus test (six of six), five of eight possible clues on the walk-and-turn test, and the maximum possible number of clues on the one-leg-stand test (four offour).She had problems maintaining her balance during all of the tests, including "a noticeable sway back and forth" during the HGN test, and had difficulty following the trooper's instructions and directions.

Based on appellant's performance on the field sobriety tests and the signs of intoxication that he observed, Trooper Fox concluded that appellant was intoxicated.He indicated that her signs of intoxication were not consistent with the recent consumption of alcohol, such as during the time frame between appellant leaving the accident and later returning.⁵Trooper Fox opined that appellant"had consumed a sufficient amount of an impairing substance to appreciably impair her mental and physical capabilities," and he believed that "that substance was alcohol."Therefore, he concluded that she was intoxicated at the time of the accident and arrested her for driving while intoxicated.After her arrest, Trooper Fox gave appellant the opportunity to provide a sample of her breath or blood, but she refused.

DISCUSSION

Appellant raises two points of error.In her first point of error, she challenges the sufficiency of the evidence supporting her conviction for driving while intoxicated.In her second point of error, she complains about the amount of the fine ordered in the trial court's written judgment of conviction.

Sufficiency of the Evidence

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged.Jackson v. Virginia, 443 U.S. 307, 313(1979);Rabb v. State, 434 S.W.3d 613, 616(Tex. Crim. App.2014).When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.Jackson, 443 U.S. at 319;Temple v. State, 390 S.W.3d 341, 360(Tex. Crim. App.2013).In our sufficiency review we consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense.Thompson v. State, 408 S.W.3d 614, 627(Tex. App.—Austin 2013, no pet.);seeJenkins v. State, 493 S.W.3d 583, 599(Tex. Crim. App.2016);Clayton v. State, 235 S.W.3d 772, 778(Tex. Crim. App.2007).We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict.Jackson, 443 U.S. at 318;seeLaster v. State, 275 S.W.3d 512, 517(Tex. Crim. App.2009).We consider only whether the factfinder reached a rational decision.SeeMorgan v. State, 501 S.W.3d 84, 89(Tex. Crim. App.2016)(observing that reviewing court's role on appeal "is restricted to guarding against the rare occurrence when a fact finder does not act rationally")(quotingIsassi v. State, 330 S.W.3d 633, 638(Tex. Crim. App.2010))."The key question is whether 'the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.'"Id.(quotingWilliams v. State, 235 S.W.3d 742, 750(Tex. Crim. App.2007)).

The trier of fact is the sole judge of the weight and credibility of the evidence.SeeTex. Code Crim. Proc. art. 38.04;Blea v. State, 483 S.W.3d 29, 33(Tex. Crim. App.2016);Dobbs v. State, 434 S.W.3d 166, 170(Tex. Crim. App.2014).Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder.SeeMontgomery v. State, 369 S.W.3d 188, 192(Tex. Crim. App.2012).Instead, we must defer to the credibility and weight determinations of the factfinder.Cary v. State, 507 S.W.3d 750, 757(Tex. Crim. App.2016);Nowlin v. State, 473...