Scillitani v. State

• Decision Date: 21 July 2011
• Docket Number: No. 14–08–00430–CR.,14–08–00430–CR.
• Citation: 343 S.W.3d 914
• Parties: Vincent Brassard SCILLITANI, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

343 S.W.3d 914

Vincent Brassard SCILLITANI, Appellant,

v.The STATE of Texas, Appellee.

No. 14–08–00430–CR.

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

June 21, 2011.Rehearing Overruled July 21, 2011.

Anthony Ray Segura, Sugar Land, for Appellant.John F. Healey, Jr., Richmond, for Appellee.Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER.

OPINION ON REMAND

KEM THOMPSON FROST, Justice.

AppellantVincent Brassard Scillitani was convicted of the offense of driving while intoxicated.On remand from the Texas Court of Criminal Appealsthis court considers whether the evidence is sufficient to support his conviction and whether the trial court erred in denying his motion to suppress evidence of breath-test results.We affirm.

Factual and Procedural Background

Trooper Patrick Hackney responded to a 1:58 a.m. dispatch call involving a single-vehicle accident.When he arrived on the scene, the trooper saw a vehicle resting in a ditch and encountered appellant, who admitted driving the vehicle.Appellant explained to the officer that he did not know how he lost control of the vehicle.At the scene the trooper also encountered two tow-truck drivers and appellant's mother.The trooper learned that appellant had notified his mother of the accident, and she had arrived before the trooper.Trooper Hackney testified that the vehicle appellant was driving went off the road, into a ditch, and hit a fence pole.Trooper Hackney testified there were no skid marks on the road.

The trooper smelled alcohol on appellant's breath, but appellant denied having consumed any alcohol.The trooper conducted several field sobriety tests.Appellant exhibited all six clues of intoxication on the horizontal gaze nystagmus (HGN) test, two of eight clues of intoxication on the walk-and-turn field test, and no clues of intoxication on the a one-leg-stand test.Appellant consented to a preliminary breath test, which confirmed the presence of alcohol on his breath.In Trooper Hackney's opinion, the accident was caused by appellant's driving while intoxicated and his driving at an unsafe speed on wet roads.

Based on the trooper's observations and field testing, he placed appellant under arrest for driving while intoxicated.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. showed appellant's breath alcohol level to be 0.133 grams of alcohol per 210 liters of breath.

The State charged appellant with the offense of driving while intoxicated.Appellant pleaded “not guilty” and filed a motion to suppress the results of the Intoxilyzer breath tests.The trial court denied the motion.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.

Appellant appealed his conviction to this court.In his first issue, appellant challenged the sufficiency of the evidence to support his conviction and, in his second issue, appellant claimed that the trial court erred in denying his motion to suppress.Seeid.Relying upon binding precedent from the Court of Criminal Appeals and opinions from the First Court of Appeals, this court sustained appellant's first issue and concluded that the evidence was legally insufficient to support his conviction.SeeScillitani v. State,297 S.W.3d 498, 502–03(Tex.App.-Houston [14th Dist.]2009)(relying onJohnson v. State,517 S.W.2d 536, 538(Tex.Crim.App.1975), Stoutner v. State,36 S.W.3d 716(Tex.App.-Houston [1st Dist.]2001, pet. ref'd), andWeaver v. State,721 S.W.2d 495(Tex.App.-Houston [1st Dist.]1986, pet. ref'd)), vacated,315 S.W.3d 542(Tex.Crim.App.2010).This court did not reach the merits of appellant's second issue.

The State filed a petition for discretionary review.While the petition was pending, the Court of Criminal Appeals decided a case with a similar issue.SeeKuciemba v. State,310 S.W.3d 460(Tex.Crim.App.2010).In response to the State's petition for review in the case under review, the high court noted that the intermediate appellate court in Kuciemba relied on the same cases upon which this court relied in reversing appellant's conviction.SeeScillitani v. State,315 S.W.3d 542, 542(Tex.Crim.App.2010)(per curiam).Because, in reversing the trial court's judgment, this court did not have the benefit of the Court of Criminal Appeals's opinion in Kuciemba, the high court vacated this court's judgment and remanded to this court for consideration in light of that opinion.Seeid.

Issues and Analysis

Is the evidence sufficient to support appellant's conviction for driving while intoxicated?

In his first issue, appellant claims that the evidence is legally and factually insufficient to show that he drove the vehicle at the time 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 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 trier of fact 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 majority of the judges of the Court of Criminal Appeals have determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”Brooks v. State,323 S.W.3d 893, 895(Tex.Crim.App.2010)(plurality op.)(Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.);id. at 912–15(Cochran, J., concurring, joined by Womack, J.)(same conclusion as plurality).Therefore, in this casewe will review the evidence only under the Jackson v. Virginia standard, as articulated in the preceding paragraph.

A person commits the offense of driving while intoxicated if that person operates a motor vehicle in a public place while intoxicated.Tex. Penal Code Ann. § 49.04(a)(West 2011).One is considered intoxicated if he 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 of 0.08 or more in his breath, blood, or urine.SeeTex. Penal Code Ann. § 49.01(2)(A)-(B)(West 2011).

In light of appellant's admission that he was the driver of the vehicle, the evidence is sufficient to show that appellant was driving at the time of the accident.But there must be a temporal link between appellant's intoxication and appellant's driving.SeeKuciemba,310 S.W.3d at 462.A crucial issue in this appeal is what quantum of evidence would allow a rational trier of fact to find that the evidence establishes this temporal link beyond a reasonable doubt.

On remand, appellant relies upon the Court of Criminal Appeals's opinion in Johnson v. State,517 S.W.2d 536(Tex.Crim.App.1975), a case upon which this court relied in its opinion on original submission in the case under review.SeeScillitani,297 S.W.3d at 503.In Johnson, a police officer arrived at the scene of a single-vehicle accident ¹ and found the vehicle in a ditch on the side of the road.SeeJohnson v. State,517 S.W.2d 536, 537(Tex.Crim.App.1975).Nobody was in the vehicle, but there were several people nearby, one of whom admitted he was driving the vehicle when the accident occurred.²Seeid.Upon further investigation, the officer concluded that this person was intoxicated.Seeid.A test administered more than two-and-a-half hours after the officer arrived on the scene showed that the person had an alcohol concentration of .20 in his blood.Seeid.There was no direct evidence showing when the accident occurred.Seeid. at 537–38.On this record, the Court of Criminal Appeals concluded that (1) there was no evidence showing when appellant drove the vehicle; (2) there was no evidence of how recently the vehicle had been driven; and (3) there was no evidence that appellant was intoxicated when he drove the vehicle.Seeid. at 538.The Johnson court held the evidence was legally insufficient to support the conviction.Seeid.

We conclude that the Court of Criminal Appeals impliedly overruled Johnson in Kuciemba.SeeKuciemba,310 S.W.3d at 462–63.In Kuciemba, a police officer arrived at the scene of a single-vehicle accident and found the vehicle in a ditch on the side of the road.Seeid. at 461.When the officer arrived a person was in the driver's seat of the vehicle, and that person had small cuts on his forehead and blood running down his face.Seeid.The officer detected the odor of alcohol on the driver's breath and determined that the driver was intoxicated.Seeid.The driver told the officer that he had fallen asleep.Seeid.But the...