Zavala v. State

• Decision Date: 12 September 2002
• Docket Number: No. 13-99-671-CR.,13-99-671-CR.
• Citation: 89 S.W.3d 134
• Parties: Marcos ZAVALA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

89 S.W.3d 134

Marcos ZAVALA, Appellant, v. The STATE of Texas, Appellee.

No. 13-99-671-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

September 12, 2002.

Christian Carl Samuelson, Jason D. Cassel, Houston, for appellant.

Calvin A. Hartmann, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney, S. Elaine Roch, Asst. District Attorney, Houston, for state.

Before Justices HINOJOSA, CASTILLO, and McCORMICK.¹

OPINION

ERRLINDA CASTILLO, Justice.

Appellant, Marcos Zavala, was convicted of driving while intoxicated in a trial before the court. After hearing the evidence, the trial court found him guilty and assessed punishment at 180 days in jail, probated for one year, and a $300.00 fine. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. More particularly, appellant asserts that the State failed to prove that he operated a vehicle at any specific hour of the day while he was intoxicated. We affirm.

Factual Background

In late September or early October of 1998, appellant bought a black Mustang automobile from his wife's cousin, Pedro Perales. Although appellant had not fully paid Perales for the vehicle, he had taken possession of it.

On November 29, 1998, an off-duty officer working at a restaurant near the Southwest Freeway in Houston noticed a number of wreckers going to a nearby location and went over to discover what had happened. At 3:40 a.m., Officer Kristin Gibbs, of the Houston Police Department, was dispatched to the scene, arriving on the scene at 3:48 am. She spoke first with the off-duty police officer who directed her to appellant who was standing fifteen to twenty feet away. She approached appellant and asked him what happened. He told her that he had been on the feeder road, northbound, attempting to take the on-ramp to enter the Southwest Freeway. Appellant further explained to her that a car had then run him off of the road, causing him to hit a traffic control device that controlled entry to the freeway from the entrance ramp and then go across the median. Officer Gibbs observed the car, about a tenth of a mile from the traffic control device, with the car's right front quarter panel torn off, but still attached to the car by a cable. All four tires were flat and the panel had apparently been dragged under the car for some distance. While appellant was talking, Gibbs noticed an odor of an alcoholic beverage on appellant's breath, and on questioning him, he admitted to having had "a Jack Daniels and Coke" between 11:00 and 11:30 p.m. the previous night. Suspicions were raised in her mind that he was intoxicated at the time of the accident also by the fact that he had continued driving for one-tenth of a mile with four flat tires and a "torn-off" front quarter panel and that the entrance ramp was a single lane ramp, and so no vehicle could have run him off unless it was traveling on the median. Gibbs then inspected appellant's car and determined that there was no damage to his car indicating that he had been struck by another vehicle.

Gibbs then performed a H.G.N.² test on appellant, concluded he was intoxicated,³ and placed him under arrest at 3:55 a.m. She then transported appellant to the intoxication center. While there, appellant began to cry and again described to Officer Gibbs how he had been attempting to get on the freeway when another car had run him off the road. While at the center, appellant refused a breath test and was administered another H.G.N. test by a different officer, who observed appellant crying and with bloodshot eyes. Appellant was also administered other sobriety tests by another officer, who videotaped the tests. Both officers were certified to give the respective tests. At the center, appellant had a very strong odor of alcohol that could be smelled three to five feet away. Both officers believed he was intoxicated and had lost the normal use of his mental and physical facilities.

At trial, Officer Gibbs testified that no one else, other than police, defendant, and the wrecker drivers were at the scene. She admitted that she didn't know exactly what time the accident took place; the vehicle was not running when she arrived; she didn't remember if the keys were in the vehicle; appellant was not in the car; she did not see appellant driving; no one told her they saw appellant drive the vehicle; and she saw no alcoholic beverage containers at or around the scene. At trial, testimony was also given by Roman Flores, cousin to appellant, who stated that, after viewing the videotape, he did not believe appellant was intoxicated. On cross-examination, Flores testified that appellant had described the accident to him and told Flores that he had been run off the road while driving and had hit a traffic light.

Standard of Review

In conducting a legal sufficiency review, we consider all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this review, we are not to reevaluate the weight and credibility of the evidence, but rather, act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993).

In conducting a factual sufficiency review, we also consider all the evidence but without the prism of "in the light most favorable to the prosecution." Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). While authorized to disagree with the fact finder, the reviewing court must be appropriately deferential to the fact finder's findings so as not to substitute its judgment for that of the fact-finder and so should act only to prevent a manifestly unjust result. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). Unless the available record clearly reveals a different result is warranted, a reviewing court must defer to the fact finder's determination concerning the weight to be given contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under a factual sufficiency review, the appellate court, after viewing all the evidence neutrally, is to consider whether either the proof of guilt is so weak as to render it clearly wrong and manifestly unjust or the verdict of guilt is against the great weight and preponderance of the available evidence. Id. at 11.

The Extrajudicial Statements

At the outset, we are confronted with the evidentiary effect of appellant's extrajudicial statements made to Officer Gibbs, both at the scene and at the station, that he was driving the black Mustang. While proof of the corpus delicti of an offense may not be made by an extrajudicial confession alone, proof of the corpus delicti need not be made independent of the extrajudicial confession.⁴ Self v. State, 513 S.W.2d 832, 835 (Tex.Crim.App.1974). As long as there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti. Id.

The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.Crim. 497, 250 S.W.2d 200, 200 (1952). In Folk v. State, 797 S.W.2d 141, 144 (Tex. App.-Austin 1990, pet. ref'd), a case very similar to the one before us, the defendant argued that the corpus delicti was not proven because there was no evidence other than his extrajudicial statement tending to prove that he was driving the car. The court there found that evidence that the vehicle was registered to a person with whom the defendant lived was sufficient to corroborate his admission that he was driving the vehicle that night. Id. In the instant case, under Folk, the testimony of Perales that appellant was purchasing the vehicle and had taken possession of it is sufficient to corroborate his statement.⁵ Id. We therefore find that appellant's statements may be used in establishing the corpus delicti in the instant case. Id.

Sufficiency Analysis

Considering appellant's statements then, along with the other evidence presented we find that the evidence is legally and factually sufficient to show that appellant was driving the black Mustang at the time of the accident. Id. Further, we find the evidence legally and factually sufficient to show appellant was intoxicated after the accident. See Bright v. State, 865 S.W.2d 135, 137 (Tex.App.-Corpus Christi 1993, pet. ref'd)(citing Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd))(jury could consider defendant's failure to submit to a breath test as evidence of driving while intoxicated); Little v. State, 853 S.W.2d 179, 183 (Tex.App.-Corpus Christi 1993, no pet.)(the uncorroborated testimony of an arresting officer alone is sufficient to establish intoxication); Hargrove v. State, 774 S.W.2d 771, 772 (Tex.App.-Corpus Christi 1989, pet. ref'd)(testimony of officers sufficient to establish intoxication); see also TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999)(evidence that defendant refused breath test may be introduced into evidence at trial). But this is not the end of our inquiry. Even though the evidence is sufficient to show appellant was intoxicated at the time of his arrest, and that he did drive a vehicle, the question more precisely before us is whether we must consider whether the evidence is sufficient to show that appellant drove while he was intoxicated.

Appellant argues that the evidence is insufficient to show that he was intoxicated at the time he was operating the motor vehicle because the time of the accident was not established nor was it established that he was intoxicated at the time of the accident. Appellant argues that as the State failed to "fix" the time of the accident, or more specifically, the time of appellant's driving and his...