McCafferty v. State, 01-87-00527-CR

• Decision Date: 10 March 1988
• Docket Number: No. 01-87-00527-CR,01-87-00527-CR
• Citation: 748 S.W.2d 489
• Parties: Brigid Ann McCAFFERTY, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 489

748 S.W.2d 489

Brigid Ann McCAFFERTY, Appellant, v. The STATE of Texas, Appellee.

No. 01-87-00527-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

March 10, 1988.

Rehearing Denied April 8, 1988.

Trent Gaither, Haynes & Fullenweider, Houston, for appellant.

John B. Holmes, Dist. Atty., Harris County, for appellee.

Before EVANS, C.J., and SAM BASS and DUNN, JJ.

OPINION

DUNN, Justice.

A jury found appellant guilty of driving while intoxicated ("DWI") and assessed punishment at one year, probated for two years, and a fine of $600.

Appellant was arrested for DWI on January 16, 1987, after she had gotten her car stuck in a ditch caused by some road construction, as she was trying to go around some barrels blocking the normal exit from a fast food restaurant onto Westheimer. The wrecker driver, who was sent to assist her, was stopped on his way by a police officer for a traffic violation. Upon hearing of the accident, Officer Poff, who was assigned to the DWI Task Force of the Accident Division, decided to accompany the wrecker driver to investigate. Poff testified that when he arrived at the scene at approximately 3:50 a.m., he detected a strong odor of alcoholic beverage on appellant's breath, and saw that her eyes were bloodshot. He established that appellant had driven the car, both from her own admission and from statements of David Stauber, who had witnessed appellant drive into the parking lot from Westheimer at approximately 2:30 a.m. and her subsequent accident. After giving appellant a field sobriety test, which she failed, Poff placed her under arrest and took her to the police station. A videotape was made, and a breath test was administered to appellant by Officer Webster at approximately 4:45 a.m. The results of the breath test showed an alcohol level of .18. The legislature has established .10 as per se intoxicated. Tex.Rev.Civ.Stat.Ann. art. 6701l -1(a)(2)(B).

In point of error one, appellant challenges the sufficiency of the evidence to support her conviction for driving while intoxicated. To sustain a conviction for driving while intoxicated, the evidence must show that the appellant (1) drove the vehicle, (2) while intoxicated, (3) on a public road or highway. Nelson v. State, 628 S.W.2d 451, 453 (Tex.Crim.App.1982).

Appellant argues that the State failed to prove the second element, that appellant drove while intoxicated. The pertinent evidence includes (1) the testimony of Officer Poff previously discussed; (2) the testimony of the State's expert witness who introduced the results of the breath test, which indicated that the equivalent of nine one ounce glasses 50% alcohol had been consumed, and that appellant was intoxicated at the time of the test; (3) the testimony of David Stauber; and (4) the testimony of a friend of appellant, Denise Purcell.

David Stauber, called by the State, testified (1) that at approximately 2:30 a.m., he saw appellant drive into the fast food restaurant parking lot from Westheimer, drive through the drive-thru, and the subsequent accident; (2) that he remained with appellant for over an hour until the wrecker and police arrived; and (3) that he saw no indication that appellant was intoxicated.

Denise Purcell, called as a defense witness, testified (1) that she had been with appellant the evening of the arrest from 10:30 p.m. to 1:30 a.m., and observed appellant drink only three glasses of wine; (2) that she left appellant at 1:30 a.m. at a bar that stayed open until 2:00 a.m.; (3) that appellant was not intoxicated at the time she left her at the bar; and (4) that at 2:15 a.m., she heard appellant being dropped off at her house to get appellant's car.

Appellant argues that the instant case should be controlled by Coleman v. State, 704 S.W.2d 511, 512 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd), in which this Court reversed a conviction for DWI based on insufficient evidence, where there was "no evidence, other than the accused's own extrajudicial admission to show that he was driving the vehicle, and no evidence whatsoever to show that the accused was intoxicated at the time he was driving."

The State argues that this case more closely resembles and should be controlled by Weaver v. State, 721 S.W.2d 495 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd), where this Court affirmed a DWI conviction after finding sufficient evidence to corroborate the accused's extrajudicial admission that she was driving. The evidence in Weaver consisted of testimony by a friend of the accused establishing that the accused had been drinking intermittently for several hours before the accident and that the accused left driving his car, four miles from the accident and approximately 15 minutes before the officer's arrival at the scene.

After reviewing several prior decisions on this issue, including Coleman, this Court, in Weaver, established the following guidelines to use in assessing the sufficiency of the evidence in a DWI conviction:

Thus, in order to fix the time of an accused's unlawful driving to support a conviction for driving a motor vehicle while intoxicated, there must be some independent evidence of: (1) how recently the vehicle had been driven, Rawls v. State, 167 Tex.Crim.R. 106, 318 S.W.2d 662 (1958); or (2) how much time had elapsed between the accident and the arrival of the police officer, Sinast v. State, 688 S.W.2d at 632, so as to furnish the jury with an informed basis for determining the relationship, if any, between the accused's driving and...