Massie v. State

• Decision Date: 05 January 1988
• Docket Number: No. 05-87-00427-CR,05-87-00427-CR
• Citation: 744 S.W.2d 314
• Parties: Arthur Scott MASSIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 314

744 S.W.2d 314

Arthur Scott MASSIE, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-00427-CR.

Court of Appeals of Texas Dallas.

Jan. 5, 1988.

Joseph E. Ackels, J. Thomas Sullivan, Dallas, for appellant.

Pamela Sullivan Berdanier, Dallas, for appellee.

Before WHITHAM, McCLUNG and STEWART, JJ.

McCLUNG, Justice.

Arthur Scott Massie appeals his conviction for driving while intoxicated. Punishment was assessed by the jury at 90 days confinement and a $500 fine. Appellant's first three points of error challenge the constitutionality and construction of the Texas DWI statute. Appellant next asserts improper admission of evidence in violation of his Miranda rights and right to silence. Finally, appellant complains that the court failed to instruct the jury that refusal to take a breathalyzer test was not an admission of guilt. Because we find no merit in appellant's arguments, we affirm the trial court's judgment.

The State charged appellant with the offense of driving while intoxicated. The information alleged, in pertinent part, that on August 1, 1985, appellant "... did then and there drive and operate a motor vehicle in a public place in Dallas County, Texas, to-wit: a street and highway, while intoxicated, in that the defendant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into defendant's body...." (emphasis added).

At trial a police officer who was involved in the arrest testified that she determined appellant was intoxicated based on appellant's loss of normal use of his faculties and based on appellant's bloodshot eyes, slurred speech, and breath which smelled of alcohol. On cross-examination the officer said she was not aware of appellant's normal use of his mental and physical faculties including his speech patterns and physical appearance.

The officer at the videotaping room at the jail where appellant was taken immediately after the arrest also testified at trial. He testified that he had never met appellant before, but it was his opinion that appellant was intoxicated because appellant did not answer his questions, did not act like other suspects in the room, swayed as he walked, smelled of alcohol, and had blood shot eyes. No evidence of appellant's normal physical or mental faculties appears in the record.

In his first point of error appellant complains that article 6701l-1(a)(2)(A) of Texas Annotated Civil Statutes which defines intoxication is unconstitutionally vague and overbroad because it fails to precisely define the standard of "normal use of mental or physical faculties." He asserts the statute fails to state whether a person is intoxicated when his use of his faculties falls below the level of ability of the common man, or below the level of ability that is normal for him. This court held in Watkins v. State, 741 S.W.2d 546 (Tex.App.--Dallas, 1987, pet. filed) that 6701l-1(a)(2)(A) was not unconstitutionally vague and overbroad for failure to define this standard; thus we overrule appellant's first point of error.

In his second point of error appellant contends the evidence was insufficient because there is no evidence of appellant's normal use of his faculties and thus no proof that he lost his normal use of them as alleged in the information. We do not construe an allegation that appellant did not have normal use of his mental and physical faculties the same as an allegation that appellant did not have his normal use of his faculties. The former allegation does not require proof of the defendant's normal abilities. Rather, it means that the faculties which must be tested belong to appellant. If there was evidence that appellant could not use his faculties on the occasion in question, in the manner in which the normal non-intoxicated person would be able to use his faculties, the evidence is sufficient to convict him unless the jury finds that his inability to perform on that occasion is not due to intoxicants (e.g. diabetes; epilepsy).

To sustain this conviction for driving a motor vehicle while intoxicated, the evidence must show that appellant drove the vehicle, that he drove while he was intoxicated, and that he drove in a public place. Johnson v. State, 517 S.W.2d 536, 538 (Tex.Crim.App.1975). In the instant case the arresting officer testified, based on police training and experience that appellant was intoxicated. She based her opinion on appellant's general appearance and the way he talked, smelled, and behaved in response to field sobriety tests. The video room officer, likewise, formed an opinion based upon the way appellant swayed as he walked, smelled, and appeared and behaved. We hold, after viewing the evidence in the light most favorable to the verdict, that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We overrule point of error two.

In his third point of error appellant claims that the information improperly refers to the loss of normal use of "his" physical or mental faculties, since such a charge lowers the State's burden of proof. As stated above, such information does not change the states's burden of proof, and is not fundamentally defective. Watkins v. State, 741 S.W.2d 546 (Tex.App.--Dallas, pet. filed).

Appellant next complains that the trial court abused its discretion by admitting evidence that the police obtained by questioning appellant prior to giving him Miranda warnings. When the police officer first stopped appellant, he asked appellant where he was going and appellant replied that he was going home. When asked where home was, appellant replied that he lived on McKinney Avenue. This evidence was introduced at trial, along with testimony that appellant's car was headed the opposite direction from McKinney Avenue, to show appellant was intoxicated.

Questioning which is normally attendant to arrest and custody...