Perkins v. State
Decision Date | 18 May 2000 |
Docket Number | No. 10-95-165-CR,10-95-165-CR |
Citation | 19 S.W.3d 854 |
Parties | (Tex.App.-Waco 2000) CALVIN RAY PERKINS, Appellant v. THE STATE OF TEXAS, Appellee Opinion delivered and filed |
Court | Texas Court of Appeals |
From the 203rd District Court Dallas County, Texas Trial Court # F94-52962-P
Before Chief Justice Vance, Justice Gray and Chief Justice McDonald (Retired) (Dissenting opinion)
OPINION ON RECONSIDERATION AFTER PETITION FOR DISCRETIONARY REVIEW
We initially reversed Calvin Perkins' driving while intoxicated conviction because we concluded that the evidence was factually insufficient to support the trial court's finding of guilt. Perkins v. State, 940 S.W.2d 365 (Tex. App. Waco 1997), rev'd, 993 S.W.2d 116 (Tex. Crim. App. 1999). The Court of Criminal Appeals vacated our decision and remanded this cause to us for reconsideration of Perkins' factual sufficiency challenge in light of Cain v. State. Perkins v. State, 993 S.W.2d 116 (Tex. Crim. App. 1999); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997). On reconsideration, we will overrule his point and affirm the conviction.
How we review a factual sufficiency challenge to the evidence
When conducting a review of the factual sufficiency of the evidence, we recognize that the State bears the burden of proof beyond a reasonable doubt and apply the "complete and correct" standard of review set out by the Court of Criminal Appeals in Johnson v. State, ____ S.W.3d ____, ____, No. 1915-98, 2000 WL 140257, *8 (Tex. Crim. App. 2000). This court "asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [the fact finder's] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Id.; see also Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
Our review begins with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are not free to re-weigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Nor may we reverse a decision simply because we disagree with the result. We must defer to the fact finder's findings and may find the evidence factually insufficient only where necessary to prevent a manifest injustice. Cain, 958 S.W.2d at 407.
Additionally, we must review all of the evidence. Id. at 408; Clewis, 922 S.W.2d at 129. The review is the same for circumstantial evidence as it is for direct evidence. See Geesa v. State, 820 S.W.2d 154, 158-59 (Tex. Crim. App. 1991); Reeves v. State, 969 S.W.2d 471, 478 (Tex. App. Waco 1998, pet. ref'd). We must consider the evidence as a whole, not viewing it in the light most favorable to either party. Cain, 958 S.W.2d at 408. A decision is not manifestly unjust as to the accused merely because the fact finder resolved conflicting views of the evidence in favor of the State. Id. at 410. Thus, as the reviewing court, we view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. Cain, 958 S.W.2d at 408; Clewis, 922 S.W.2d at 129.
What the evidence shows
The evidence presented at trial establishes that late in the evening of April 2, 1994, an unknown caller informed the authorities that "someone was unconscious in the middle of the road" in their car on Military Parkway. Dallas firefighter James Farrel was despatched from downtown to investigate the situation. Farrel went to the 8000 block of Military Parkway with his siren and emergency lights activated. When he arrived at the scene, he found a car straddling the middle of two eastbound lanes.
According to Farrel, when he approached the car, its engine was running and it was in gear. Perkins was passed out in the front seat with his foot on the brake. Neither the siren nor the emergency lights woke Perkins, so Farrel made sure Perkins was breathing and had a pulse, and put the car in park and took the keys out of the ignition to prevent him from leaving the scene. The firefighter smelled the odor of alcoholic beverages on Perkins and saw several beer cans in the back seat. Perkins did not wake up during any of Farrel's actions in securing the car.
Dallas police were summoned to the scene by the firefighters. As the police arrived, Perkins woke up and got out of the car. Firefighter Farrel, before he left the scene, saw Perkins get out of his car and begin to talk to Officer Mark Johnson, the responding police officer. Farrel testified that Perkins' "speech was kinda slurred [and Perkins] seemed a little whoozy." Farrel believed that Perkins was intoxicated. After giving a report to Officer Johnson, Farrel and the other firefighters left the scene.
Johnson testified that as he began talking to Perkins, he "noticed the strong smell of alcohol on his breath [and that Perkins] was unable to stand still in one position for very long before he would begin to fall or weave to one direction, and [would] have to step that way to compensate for his loss of balance." At Perkins' attorneys' request, Johnson demonstrated for the trial court the extent to which Perkins was weaving and moving in his attempts to remain standing. Perkins attempted to recite the alphabet at Johnson's request, but incorrectly did so by ending in "TUZ." Perkins told Johnson that he was unable to count backwards from 38 to 22. Although it was shortly after 11:00 p.m., Perkins told Johnson that he thought it was 2:00 a.m. or 3:00 a.m. Johnson did not recall seeing any beer cans in Perkins car that night and did not produce any pictures or an inventory of Perkins' car that showed that beer cans were found in it. Johnson determined that Perkins was intoxicated and arrested him for the offense. At the police station, Perkins refused to submit to either a breath or a blood test of his blood alcohol level.
The State also presented a video tape of Perkins at the police station. On the video tape, Perkins is cooperative with the officers, speaks clearly but deliberately, and is able to follow directions. He recites the alphabet without error and counts backwards from 38 to 22 with only one error. Although Perkins does sway some, he does not stumble, fall down or appear to be off-balance.
Other evidence opposes Farrel's and Johnson's testimony. First, Emil Thompson, Perkins' friend of thirty-four years, testified that he was with Perkins earlier in the day from around 5:00 p.m. to around 9:45 p.m. At first, Thompson and Perkins were at a recreation center, involved in organizing and running a show for children. When the concert ended a little after 9:00, Thompson and Perkins went to a carwash to clean out their cars. There, Perkins drank one beer. Thompson brought the beer with him. Thompson knew that Perkins had taken some anti-allergy medication that normally caused Perkins to "go straight home." According to Thompson,...
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