Darrel Eugene Hogan v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00782-CR Darrell Eugene Hogan, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 49,585, HONORABLE MARTHA TRUDO, JUDGE PRESIDING A jury convicted appellant Darrell Eugene Hogan of felony driving while intoxicated. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b) (West Supp. 2000). The court assessed punishment at imprisonment for ten years and a $1000 fine. In two points of error, Hogan alleges that the evidence is legally and factually insufficient to support his conviction. We will affirm the judgment. Factual Background After dark on December 3, 1998, Police Officer Bernard Brannum saw a truck pull out of a parking lot with its lights off. The driver, Hogan, immediately pulled too far to the right and scraped his tires against a curb. While making a turn, Hogan drove over the curb. Brannum turned on his overhead lights and sounded his horn. Unresponsive, Hogan went on to "sideswipe" a parked vehicle. Brannum then turned on his siren. Hogan continued for approximately three blocks before pulling into a driveway. Police Officer Travis Wolfe arrived at the scene as Brannum was pulling up behind the truck. Both Brannum and Wolfe walked toward the truck, each loudly ordering Hogan to stay in the vehicle. As the officers were approaching, Hogan got out and walked away from them, steadying himself on the side of the truck. After the officers stopped Hogan, they briefly spoke with him. Hogan's eyes were red and glassy, his speech was slurred, and he smelled of alcohol. Brannum attempted to do a horizontal gaze nystagmus test. Hogan would not participate in the test, saying that he could not focus. Both officers believed that Hogan was intoxicated, and they placed him under arrest. Wolfe found a crutch and an empty beer can in the cab of the truck. The beer can was wet with condensation and cool to the touch. After being placed in Brannum's car, Hogan asked for his crutch. At some point during these events, Hogan mentioned that he wanted to go to the Veterans Administration Hospital. At the police station, Hogan complained that he was having difficulty getting around and was placed in a rolling chair. Officer Brannum then wheeled Hogan into the "intoxilyzer room" to attempt to get a voluntary breath sample. The Temple Police Department equips this room with a video camera. Once in the room, Hogan tried to wheel his chair out of the camera's range. Intoxilyzer operator James O'Brien was unable to obtain a breath sample. Hogan then told Brannum and O'Brien that he was diabetic, did not feel well, and wanted to go to the Veterans Administration Hospital. Accompanied by Brannum, Hogan was taken to the hospital. After being evaluated by hospital staff, Hogan was given no prescriptions and no treatment; he was released back into Brannum's custody. Discussion Preservation of Error In two points of error, Hogan contends that the evidence is legally and factually insufficient to support a finding that he was intoxicated. The State argues that Hogan failed to preserve his legal sufficiency complaint because he did not move for a directed verdict at the close of the evidence. We reject this argument because, unlike a civil defendant, a criminal defendant is not required to preserve a legal sufficiency complaint. See Davila v. State, 930 S.W.2d 641, 649 n.7 (Tex. App.--El Paso 1996, pet. ref'd). Additionally, the State contends that Hogan failed to preserve his factual sufficiency complaint because he did not move for a new trial or to have the judgment arrested. This argument also fails because a factual sufficiency complaint can be raised for the first time on appeal so long as it is treated as an independent issue in appellant's brief. See id. at 648; Chesnut v. State, 959 S.W.2d 308, 311 (Tex. App.--El Paso 1997, no pet.). Sufficiency of Evidence The statute under which Hogan was convicted provides that "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). Under the Texas Penal Code, "intoxicated" means: (A) not having 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 two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Id. § 49.01(2) (West Supp. 2000). Because Hogan did not give a breath sample, he was charged under the "impairment" definition of intoxication. On appeal we must decide whether the evidence is legally and factually sufficient to support the jury's finding that Hogan did not have "the normal use of his mental or physical faculties" due to "the introduction of alcohol." When reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). Any inconsistencies in the evidence should be resolved in favor of the verdict. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and circumstantial evidence. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). Hogan argues that because only one field sobriety test was attempted and because he did not participate in that test, the evidence is legally insufficient to support a finding that he did not have the normal use of his faculties when stopped by Brannum. We disagree. The record reflects that Hogan was driving in the dark with his lights off. His truck's tires were rubbing against a curb. While making a turn, Hogan drove over a curb. He "sideswiped" a parked vehicle. While walking away from Brannum and Wolfe, Hogan steadied himself by grasping the side of his truck. His eyes were red and glassy, and his speech was slurred. He smelled of alcohol and was uncooperative when asked to participate in a horizontal gaze nystagmus test. Wolfe found a recently emptied beer can in the cab of Hogan's truck. Once in custody, Hogan was generally uncooperative and unresponsive. He tried to roll his chair out of view of the video recorder and did not give a breath sample. Brannum and Wolfe each believed that he was intoxicated. We have held that the opinion testimony of the arresting officer, standing alone, can be legally sufficient to prove the element of intoxication. See Irion v. State, 703 S.W.2d 362, 364 (Tex. App.--Austin 1986, no pet.). Here Brannum's testimony was corroborated and supplemented by the testimony of Wolfe and O'Brien. Viewing the evidence in the light most favorable to the prosecution, we hold that it is sufficient to prove that Hogan was intoxicated when stopped by Officer Brannum. Hogan's first point of error is overruled. When reviewing the factual sufficiency of the evidence, we do not view the evidence in the light most favorable to the prosecution. Instead, we consider all evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. See Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). The court, however, does not substitute its judgment for that of the jury and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). An appellate court may not reverse a jury's verdict simply because it disagrees with the result. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Hogan insists that a medical condition unrelated to intoxication can explain his appearance and behavior on the night of his arrest. We must consider this hypothesis in our factual sufficiency review. Officer Wolf found a crutch in Hogan's car, which Hogan later requested. After the arrest, Officer Brannum noticed that Hogan had trouble walking due to medical problems. Hogan twice requested to go to the Veterans Administration Hospital. At the time of his second request, he told the officers that he was diabetic. This Court must decide whether all of the record evidence, including that supporting Hogan's alternative hypothesis, weighs so heavily against the verdict as to make it clearly wrong and unjust. We hold that it does not. While there is evidence that Hogan had trouble walking due to a medical condition, there is no evidence showing that Hogan's condition would cause symptoms similar to those of intoxication. Hogan said that he was diabetic, but no evidence in the record corroborates that claim or indicates that diabetes causes symptoms similar to those of intoxication. Hogan's alternative hypothesis might be deemed reasonable; however, when considered alongside all of the evidence, it is not enough to cause us to reverse the jury's verdict. See Sneed v. State, 964 S.W.2d 764, 766 (Tex. App.--Texarkana 1998, no pet.) (holding that where record was devoid of evidence showing that injuries caused by car accident would mimic symptoms of intoxication, evidence of accident itself, slurred speech, red eyes, odor of alcohol, balance difficulties, and empty containers of alcohol was legally and factually sufficient to support verdict). Hogan's second point of error is overruled. Conclusion Because we find the evidence legally and factually sufficient to support the verdict, we affirm the trial court's judgment. Bea Ann Smith, Justice Before Chief Justice Aboussie, Justices Kidd and B. A. Smith Affirmed Filed: June 22, 2000 Do Not Publish adied himself by grasping the side of his truck. His eyes were red and glassy, and his speech was slurred. He smelled of alcohol and was uncooperative when asked to participate in a horizontal gaze nystagmus test. Wolfe found a recently emptied beer can in the cab of Hogan's truck. Once in custody, Hogan was generally uncooperative and unresponsive. He tried to roll his chair out of view of the video recorder and