Scillitani v. State

• Decision Date: 30 September 2009
• Docket Number: No. 14-08-00430-CR.,14-08-00430-CR.
• Citation: 297 S.W.3d 498
• Parties: Vincent Brassard SCILLITANI, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

297 S.W.3d 498

Vincent Brassard SCILLITANI, Appellant v.The STATE of Texas, Appellee.

No. 14-08-00430-CR.

Court of Appeals of Texas, Houston (14th Dist.).

September 30, 2009.

Anthony Ray Segura, Sugar Land, TX, for Appellants.

Jason Travis Bennyhoff, Richmond, TX, for State.

Panel consists of Chief Justice HEDGES, Justice FROST, and Senior Justice HUDSON.^*

MAJORITY OPINION

KEM THOMPSON FROST, Justice.

AppellantVincent Brassard Scillitani appeals his misdemeanor conviction for driving while intoxicated.In two issues, appellant claims the evidence is legally and factually insufficient to support his conviction and that the trial court erred in denying his motion to suppress evidence of the results of a breath test.Concluding that the evidence is legally insufficient, we reverse and render a judgment of acquittal.

I.FACTUAL AND PROCEDURAL BACKGROUND

Trooper Patrick Hackney responded to a dispatch call at 1:58 a.m. involving a single-vehicle accident on FM 359 in Fort Bend County.Upon his arrival, Trooper Hackney observed a vehicle resting in a ditch.Trooper Hackney encountered appellant, who admitted driving the vehicle.Appellant explained to the officer that he did not know how he lost control of the vehicle, which came to rest in the ditch.Trooper Hackney also encountered two tow truck drivers and appellant's mother on the scene.Trooper Hackney learned that appellant had notified his mother of the accident; she arrived before Trooper Hackney.

Trooper Hackney smelled alcohol on appellant's breath, but appellant denied having consumed any alcohol.Trooper Hackney conducted a horizontal gaze nystagmus (HGN) field sobriety test on appellant, after which the trooper determined appellant exhibited all six clues of intoxication.In conducting a walk-and-turn field sobriety test, the trooper determined appellant displayed two of eight clues of intoxication.In conducting a one-leg-stand field sobriety test on appellant, the trooper did not discern any clues of intoxication.Appellant consented to a preliminary breath test.The breath test confirmed the presence of alcohol on appellant's breath.

Based on his observations and the results of the tests, Trooper Hackney believed that appellant was driving while intoxicated and placed appellant under arrest.Following his arrest, appellant submitted two breath samples on an Intoxilyzer machine.The first sample showed appellant's breath alcohol level to be 0.135 grams of alcohol per 210 liters of breath at 3:32 a.m.A second sample at 3:35 a.m. revealed appellant's breath alcohol level to be 0.133 grams of alcohol per 210 liters of breath.

Appellant was charged with the offense of driving while intoxicated, to which he pleaded "not guilty."Appellant filed a motion to suppress the results of the Intoxilyzer breath test, which the trial court denied.Following a trial, the jury found appellant guilty as charged.The trial court assessed punishment at 180 days in the Fort Bend County Jail, probated for fifteen months, and a fine of $750.

II.ISSUES AND ANALYSIS

In his first issue, appellant challenges the legal and factual sufficiency of the evidence showing that he drove at a time when he was intoxicated.In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.Wesbrook v. State,29 S.W.3d 103, 111(Tex.Crim.App.2000).The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence.Wicker v. State,667 S.W.2d 137, 143(Tex.Crim.App.1984).The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.Matson v. State,819 S.W.2d 839, 846(Tex.Crim.App.1991).The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence."Fuentes v. State,991 S.W.2d 267, 271(Tex. Crim.App.1999).The jury may choose to believe or disbelieve any portion of the witnesses' testimony.Sharp v. State,707 S.W.2d 611, 614(Tex.Crim.App.1986).When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.Turro v. State,867 S.W.2d 43, 47(Tex.Crim.App.1993).Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.McDuff v. State,939 S.W.2d 607, 614(Tex.Crim.App.1997).

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.TEX. PENAL CODE ANN. § 49.04(a)(Vernon 2003).A person is considered intoxicated if that person does not have the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances or any other substance into the body or by having an alcohol concentration above 0.08 or more in his breath, blood, or urine.TEX. PENAL CODE ANN. § 49.01(2)(A)-(B)(Vernon 2003).

For there to be legally sufficient evidence that appellant operated a motor vehicle while intoxicated, there must be independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and the arrival of law enforcement authorities.SeeStoutner v. State,36 S.W.3d 716, 721(Tex.App.-Houston [1st Dist.]2001, pet. ref'd);Weaver v. State,721 S.W.2d 495, 498(Tex.App.-Houston [1st Dist.]1986, pet. ref'd).If law enforcement officers do not observe an accused operating a motor vehicle, evidence that the accused was intoxicated when law enforcement officers arrived on the scene, alone, does not establish that the accused was intoxicated at the prohibited time—while the accused was operating a motor vehicle in a public place.SeeStoutner,36 S.W.3d at 721;Weaver,721 S.W.2d at 498.Absent evidence in the record establishing the time of the accident or of the accused's driving in a public place, the evidence is legally insufficient to show that the accused drove while he was intoxicated.¹SeeStoutner,36 S.W.3d at 721;Weaver,721 S.W.2d at 498-99.

In light of appellant's admission to Trooper Hackney that he was the driver of the vehicle and testimony from appellant's mother that appellant acknowledged being in an accident, the evidence is legally sufficient to show that appellant was driving at the time of the accident.The evidence is also legally sufficient to establish that appellant was intoxicated when Trooper Hackney first arrived on the scene.However, neither direct nor circumstantial evidence establishes the necessary temporal link between appellant's driving and his intoxication.No witnesses testified regarding appellant's driving before the accident.Cf.Chaloupka v. State,20 S.W.3d 172, 175(Tex.App.-Texarkana2000, pet. ref'd)(involving witnesses who saw the accused driving erratically and speeding before the incident).The record does not contain any evidence to establish how soon after the accident Trooper Hackney arrived on the scene.Cf.Rawls v. State,167 Tex.Crim. 106, 318 S.W.2d 662, 663(1958)(involving evidence that vehicle's radiator and motor were still hot upon the responding officer's arrival);Layland v. State,144 S.W.3d 647, 651(Tex.App.-Beaumont 2004, no pet.)(involving officer who arrived on scene to find tires spinning and motor running);Turner v. State,877 S.W.2d 513, 514-15(Tex.App.-Fort Worth 1994, no pet.)(concluding that the accident vehicle's engine leaking steam was evidence that the accident had just happened).

The State urges that appellant's conviction is supported by facts establishing the approximate time of appellant's driving and appellant's intoxication at that time.The State asserts that appellant's mother testified that appellant called her on July 7, 2006 and told her that he had been in an accident.However, appellant's mother did not so testify; rather, she testified that, at some point "during that night,"appellant called her and told her that there had been an accident.²A reasonable juror could conclude that "during that night" meant sometime during the night of July 6-7, 2006.Appellant's mother did not specify when during this night appellant called her.Though it would be reasonable to conclude that the accident occurred before appellant called his mother and told her he had been in an accident, appellant's mother did not offer any testimony as to how long before this call the accident occurred.

The State also notes that appellant did not dispute that he crashed his vehicle on July 7, 2006, either at trial or on appeal.However, neither in the complaint nor in any testimony did any person ever assert that appellant crashed his vehicle on July 7, 2006.More importantly, appellant's failure to deny that the crash occurred on July 7, 2006, does not constitute independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and Trooper Hackney's arrival.SeeStoutner,36 S.W.3d at 721;Weaver,721 S.W.2d at 498.Though the State also notes that there was no evidence that appellant was drinking after the accident, or that he left the accident scene and returned, or that he became intoxicated after he stopped driving, this absence of evidence does not constitute such independent evidence.

The State also observes that appellant consistently maintained that he had not been drinking, and the State asserts that this false denial was evidence that he was conscious that he was guilty of driving while intoxicated.There was evidence that appellant was intoxicated at the scene of the accident, and we presume that the jury did not credit appellant's assertion that he had not been drinking.Nonetheless, evidence of appellant's intoxication at the accident scene and appellant's false denial that he had been drinking do not constitute independent evidence of (1) how recently the vehicle...