Newberry v. State

• Decision Date: 27 July 2016
• Docket Number: NO. 03-14-00560-CR,03-14-00560-CR
• Parties: Christopher Newberry, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Christopher Newberry, Appellant v. The State of Texas, Appellee

NO. 03-14-00560-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 27, 2016

FROM THE COUNTY COURT AT LAWNO. 5OF TRAVIS COUNTY

NO. C-1-CR-14-209349

HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellantChristopher Newberry of the misdemeanor offense of driving while intoxicated.¹The trial court rendered judgment on the verdict and assessed punishment at 120 days' confinement in the Travis County Jail.In two points of error on appeal, Newberry asserts that the evidence is insufficient to support his conviction and that the trial court abused its discretion in denying his motion for mistrial.We will affirm the judgment of conviction.

BACKGROUND

The jury heard evidence that on the afternoon of June 9, 2014, three 911 callers reported a possible drunk driver operating his vehicle on and around Mesa Drive in Austin.An audio recording of the 911 calls was admitted into evidence and played for the jury.On therecording, the first caller, who reported that she was driving behind the vehicle, can be heard explaining that the vehicle had "hit a guardrail" and was "swerving" across traffic lanes.At one point, the caller exclaimed, "Oh God, he's going to kill somebody!"The second caller reported that the vehicle was "crazy driving,""hitting stuff back and forth," and "swerving everywhere."The third caller reported that a jeep had arrived at an assisted living facility, had "completely missed the driveway," and had stopped and parked on the sidewalk to the facility.According to this caller, when she had approached the vehicle, there was no one inside, but someone else had told her that the driver was "out stumbling around."

Austin Police Department officers were subsequently dispatched to the facility.Officer Joe Poswalk testified that when he arrived at the facility, he observed a jeep "clearly parked well onto the sidewalk."Photos of the jeep parked on the sidewalk, which was elevated on a curb, were admitted into evidence.Poswalk recounted that when he and another officer approached the vehicle, they observed an occupant inside, in the driver's seat, asleep.Poswalk testified that the occupant of the vehicle, later identified as Newberry, was "sweaty,""drooling on himself," and "had his keys in his lap."According to Poswalk, Newberry "appear[ed] impaired, like he definitely wasn't all there."Poswalk explained, "His speech was very—you couldn't even make it out.It kind of came and went.Like he'd speak clearly and then he'd kind of mumble.So we had him step out and sit on the curb."When Newberry exited the vehicle, Poswalk added, Newberry had "impaired balance."

Another APD officer, Justin Giddings, testified that when he first spoke with Newberry, he"smelled a faint odor of alcohol" and observed that Newberry's "speech was slurry and kind of mumbled,""his eyes were glassy and watery," and "his pupils were very restricted."Officer Giddings also testified that Newberry denied that he had been drinking alcohol that day and claimed that he was "coming from work" and "headed home."Giddings proceeded to have Newberry perform the standardized field sobriety tests.Giddings testified that after observing Newberry's performance on the tests, a video recording of which was admitted into evidence, he concluded that Newberry had been driving while intoxicated and arrested him for that offense.During a search of the vehicle subsequent to the arrest, Poswalk testified, two open beer cans were found inside the center console, and a small cooler with "three more cold beers inside of it" was also discovered inside the vehicle.

Newberry testified in his defense.Newberry conceded in his testimony that he had been drinking beer on the day in question and admitted that he"was intoxicated" at the time the officers found him, but he claimed that he had not been driving the vehicle, even though he acknowledged that the vehicle belonged to him.Instead, Newberry testified, a co-worker of his named "Juan," whose surname Newberry admittedly did not know, had been driving the vehicle.According to Newberry, he had fallen asleep while Juan was driving, had awakened at some point after the car had parked at the assisted living facility, had noticed that Juan was no longer inside the vehicle, and had moved over to the driver's side of the vehicle, where he fell back to sleep until the officers arrived.When asked to explain why he did not inform the officers that Juan had been driving the vehicle, Newberry claimed that he"didn't want [Juan] getting charged with a DWI."

Based on the above and other evidence, which we discuss in more detail below, the jury found Newberry guilty of committing the offense of driving while intoxicated as charged, and the district court rendered judgment on the verdict and assessed punishment as noted above.This appeal followed.

ANALYSIS

Evidentiary sufficiency

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.²In his first point of error, Newberry asserts that the evidence is insufficient to prove that he had been operating the vehicle or, if he had been operating it, that he had done so while he was intoxicated.

We review the sufficiency of the evidence under the standard set forth in Jackson v. Virginia.³Under this standard, "[w]e view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt."⁴"The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses."⁵"When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination."⁶"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."⁷

We first address Newberry's contention that the evidence is insufficient to prove that he had been operating the vehicle.In addition to re-urging the argument he made at trial, that Juan was the driver, Newberry claims that there is "no direct evidence" that he had been driving, because the officers had not observed Newberry driving.However, "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt."⁸Here, the circumstantial evidence supporting the jury's finding that Newberry had been operating the vehicle included Officer Poswalk's testimony that Newberry was found in the driver's seat of the vehicle and that the keys to the vehicle were found in Newberry's lap.Additionally, the evidence tended to show that at the time the officers approached the vehicle, Newberry was the vehicle's only occupant; "Juan" was nowhere to be found.Also, according to Officer Giddings, Newberry had informed him that he was "coming from work" and "headed home."The jury could have reasonably inferred from these statements that Newberry had been driving the vehicle.Moreover, in a video recording of Newberry's interaction with the officers, taken from Giddings's patrol-car dashboard camera, one of the officers can be heard asking Newberry, "How did you end up here?"Newberry responded, "Um, driving?"Although Newberry later told the officers that "somebody drove [him]" to the facility, Newberry's initial statement to the officer was consistent with a finding that Newberry had been driving the vehicle, particularly in light of the other evidence tending to show that Newberry was found alone inside the vehicle, in the driver's seat, when the officers arrived.Also, Officer Poswalk testified that, during the investigation, one of the other officers had contacted a witness who had earlier observed the vehicle on the road and hadasked the witness to stop by the facility and confirm that the vehicle in the parking lot was the same vehicle that the witness had observed on the road.According to Poswalk, this witness "had already described the suspect to us," and "when [the witness] drove by, he immediately said, 'Yeah, that's him.'"Viewed in the light most favorable to the verdict, this and other evidence supports the jury's finding that Newberry had been operating the vehicle.⁹

We similarly reject Newberry's contention that the evidence is insufficient to support the jury's finding that he was intoxicated at the time he operated the vehicle.Multiple 911 callers had reported observing Newberry's vehicle, and they each reported that the vehicle was being driven in a manner that would support a finding that the driver of the vehicle was intoxicated.One 911 caller reported the vehicle "swerving,""almost hitting the curb,""hitting the guardrail," and "running off the road."Another caller, with reference to the manner of driving, exclaimed that the driver was "going to kill somebody."The third caller reported that the vehicle, while attempting to park at the assisted living facility, had "completely missed the driveway" and had ended up on the sidewalk.Moreover, the officers who had interacted with Newberry provided testimony that would also support a finding that Newberry was intoxicated.According to the officers, these indicators of intoxication included the fact that they had found Newberry asleep, drooling, and sweaty inside the vehicle, that Newberry had slurred speech and glassy eyes, that he had smelled of alcohol, and that he had performed poorly on the field sobriety tests.The officers also testified that open beer cansand a cooler containing "cold beer" were found in Newberry's vehicle.Although the record reflects that there was a gap of approximately 90 minutes between the time of the first 911 call and the arrival of officers at...