Warren v. State

• Decision Date: 08 February 2012
• Docket Number: No. 01–10–00047–CR.,01–10–00047–CR.
• Citation: 377 S.W.3d 9
• Parties: Donald Wayne WARREN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

377 S.W.3d 9

Donald Wayne WARREN, Appellant,

v.The STATE of Texas, Appellee.

No. 01–10–00047–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Sept. 8, 2011.

Discretionary Review Refused Feb. 8, 2012.

Michael P. Fosher, The Lyric Center, Houston, TX, for Appellant.

Erin Craig, Assistant District Attorney, Houston, TX, for The State of Texas.

Panel consists of Justices JENNINGS, HIGLEY, and BROWN.

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Donald Wayne Warren, was charged by information with driving while intoxicated with an enhancement paragraph alleging that appellant had an open container of an alcoholic beverage in his immediate possession at the time of the offense.¹Appellant pleaded not guilty to the charged offense and not true to the enhancement.A jury found appellant guilty as charged.The trial court found the enhancement paragraph true and assessed punishment at 180 days in county jail and a fine of $2,000.The trial court also suspended appellant's sentence of confinementand placed him on community supervision for 18 months.In four issues, appellant argues: (1) the evidence was legally and factually insufficient to establish there was a temporal link between his intoxication and his driving; (2)the trial court abused its discretion by denying his motion to suppress certain statements made to a police officer; and (3)he received ineffective assistance of counsel.

We affirm.

Background

Lee Nolen was working at a Denny's restaurant in Spring, Texas from 6:00 p.m. on February 7, 2009 until 6:00 a.m. the next morning.According to Nolen, appellant entered around 12:30 a.m. and sat down at the counter.At some point, appellant asked Nolen for a phone book so he could call a wrecker service to get his truck out of the ditch outside the restaurant.

Deputy D. Drake from the Harris County Sheriff's Department testified that he was dispatched to the Denny's for a minor accident investigation.He testified that he arrived at five minutes after midnight.When he arrived at the scene, an officer identified as Deputy Terranova was present at the scene.²Appellant was also there, standing by the driver's side door to his truck.

Deputy Drake spoke to Deputy Terranova first and then spoke to appellant.When he approached appellant, Deputy Drake asked how the accident had occurred.At the time, appellant had bloodshot eyes, he was slurring his speech, and Deputy Drake could smell alcohol on his breath.

Deputy Drake asked appellant“how he had come to know about the crash,” and appellant responded that he drove his truck into the ditch.Deputy Drake asked appellant where he was coming from, and appellant responded that he was coming from his home on Cypresswood.Deputy Drake then asked appellant what his intended destination was, and appellant responded that his destination was his home.When Deputy Drake asked appellant for his driver's license, appellant“started fumbling through his wallet,” dropping business cards out of it.Appellant then looked back up and asked Deputy Drake what he had just asked him for.After he obtained the license from appellant, Deputy Drake asked appellant if he had been drinking.Appellant responded that he had “drunk some.”When asked how many, appellant“referred to it as a few.”

While Deputy Drake was talking to appellant, appellant demanded that Deputy Drake call a person identified as J.R. Appellant asserted J.R. was a deputy with the sheriff's office, and Deputy Drake testified that he knew a J.R. that worked for the sheriff's office.

In his investigation, Deputy Drake determined that the truck had not sustained any damage other than some minor scraping to the underside of the truck.The hood of appellant's truck was still warm, indicating to Deputy Drake that the truck had been driven recently.He also testified that the inside of the cab was warmer than the outside temperature of 60 degrees Fahrenheit.Inside appellant's truck, he discovered a plastic cup containing an unidentified alcoholic drink, some of which had spilled onto the passenger's seat of the truck.

When he got out of Deputy Drake's patrol car for the field sobriety test, appellant was unsteady on his feet and asked repeatedly what he was being charged with.Prior to administering the field sobriety test, Deputy Drake asked appellant about any medications he was taking or physical problems he might have.Appellant said he was not taking any type of medications and indicated that he did not have any physical problems or difficulties.At the time appellant was asking what he was being charged with, appellant told Deputy Drake that Deputy Drake could not prove that he was driving the truck and that he had “beat one of these already.”

Deputy Drake performed the field sobriety test on appellant and observed all six clues on the horizontal gaze nystagmus test, all eight clues on the walk-and-turn test, and three of the four clues on the one-leg stand test.Deputy Drake subsequently arrested appellant.At the police station, appellant refused to provide a breath sample for testing and also refused to participate in a second field sobriety test.

Temporal Link between Driving and Intoxication

In his first and second issues, appellant argues that, despite the evidence establishing his intoxication when Deputy Drake arrived, the evidence is legally and factually insufficient to establish that appellant was intoxicated while he was driving.

A.Standard of Review

This Court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant presents the challenge as a legal or a factual sufficiency challenge.SeeErvin v. State,331 S.W.3d 49, 52–55(Tex.App.-Houston [1st Dist.]2010, pet. filed)(construing majority holding of Brooks v. State,323 S.W.3d 893(Tex.Crim.App.2010)).This standard of review is the standard enunciated in Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979).Seeid. at 912, 926.Pursuant to this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt.SeeJackson,443 U.S. at 319, 99 S.Ct. at 2789;In re Winship,397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368(1970);Laster v. State,275 S.W.3d 512, 517(Tex.Crim.App.2009);Williams v. State,235 S.W.3d 742, 750(Tex.Crim.App.2007).We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt.SeeJackson,443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at 2786, 2789 n. 11, 2789;see alsoLaster,275 S.W.3d at 518;Williams,235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.SeeJackson,443 U.S. at 319, 99 S.Ct. at 2789;Clayton v. State,235 S.W.3d 772, 778(Tex.Crim.App.2007).An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational.SeeJackson,443 U.S. at 326, 99 S.Ct. at 2793.In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.Clayton,235 S.W.3d at 778.Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.SeePowell v. State,194 S.W.3d 503, 507(Tex.Crim.App.2006).

B.Analysis

“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”Tex. Penal Code Ann. § 49.04(a)(Vernon 2011).The definition of intoxicated, as it applies to this case, is “not having the normal use of mental or physical faculties by reason of the introduction of alcohol ... into the body.”Tex. Penal Code Ann. § 49.01(2)(A)(Vernon 2011).Based on the statutory requirements, the State was required to prove that appellant was intoxicated at the timehe was operating the motor vehicle in a public place.Seeid.§ 49.04(a).

Appellant does not challenge the evidence that he was driving the truck at the time of the accident.Nor does he challenge the evidence that he was driving in a public place.We are left to determine, then, whether the evidence is sufficient to show that appellant was intoxicated at the time he was driving.Appellant argues there is no evidence establishing how much time had elapsed from when the accident occurred to when Deputy Drake arrived, suggesting his intoxication could have occurred after the accident happened.

In order to support a finding that the defendant was intoxicated while operating a motor vehicle, “there must be a temporal link between the a [ sic ]defendant's intoxication and his driving.”Kuciemba v. State,310 S.W.3d 460, 462(Tex.Crim.App.2010).Such a finding can be supported by direct or circumstantial evidence.Seeid.(holding conviction can be supported solely by circumstantial evidence).“Being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object.”Id.

Similar to the defendant in Kuciemba,appellant drove his car into a ditch and was found intoxicated at the scene of the accident.Deputy Drake testified that the hood of appellant's...