Lawrence Floyd Miller III v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00232-CR ____________________ LAWRENCE FLOYD MILLER III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 96854 MEMORANDUM OPINION A jury found appellant, Lawrence Floyd Miller III, guilty of felony driving while intoxicated. The judge sentenced Miller to ten years' confinement in prison, suspended the imposition of the sentence, placed him on community supervision for ten years, and imposed a fine of $1,000.00. In two issues, Miller challenges the legal and factual sufficiency of the evidence supporting the verdict and contends the trial court erred by failing to grant his Batson Challenge. (1) We overrule Miller's issues and affirm the judgment. Factual Background Around 12:30 a.m. on February 19, 2006, Trooper Kenneth Sanders stopped Miller's pickup because Sanders observed that the truck was being driven on Highway 87 without its headlights on. Just before stopping, Miller turned off Highway 87 into a trailer park. As Trooper Sanders approached the pickup, Miller exited, threw his wallet into the pickup's bed, and began backing towards a nearby trailer. Trooper Sanders identified himself, and Miller tensed up and clenched his fists. Upon approaching Miller, Trooper Sanders noticed "the odor of an alcoholic beverage," Miller's "red, bloodshot glassy eyes," and Miller's "slurred speech" that was "at times almost hard to understand. . . ." Trooper Sanders conducted the horizontal gaze nystagmus sobriety ("HGN") test, and identified six out of six possible clues of intoxication as positive. At the conclusion of that test, Miller refused further field sobriety testing and asked for his attorney. At that point, Trooper Sanders placed Miller under arrest for driving while intoxicated. Standard of Review Miller contends the evidence is legally and factually insufficient to support his conviction. When both legal and factual sufficiency are raised on appeal, we first address the legal sufficiency of the evidence; if the evidence is legally sufficient to support the conviction, we then address factual sufficiency. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). With respect to the legal sufficiency of the evidence in a criminal case, we review all of the evidence in a light most favorable to the verdict, and we decide if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). In determining the evidence's factual sufficiency, we review the evidence in a neutral light. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282, 169 L.Ed.2d 206, 76 U.S.L.W. 3165 (2007). "Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The reviewing court may not reverse for factual sufficiency if "'the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson, 204 S.W.3d at 417). While the appellate court may "second-guess the [fact finder] to a limited degree, the review should still be deferential, with a high level of skepticism about the [fact finder's] verdict required before a reversal can occur." Id. (citing Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997)). In examining a factual sufficiency challenge, we "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence . . . ." Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Analysis Driving while intoxicated occurs when an intoxicated person operates a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated," as defined by the charge in this case, meant "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[.]" Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon 2003). Trooper Sanders's testimony that he observed Miller operating his pickup after dark without headlights, smelled the odor of an alcoholic beverage when he approached Miller, noticed Miller's bloodshot eyes, and heard Miller respond with slurred speech, together with the positive clues he detected on Miller's HGN test, constitute legally sufficient evidence to support the conviction. In Dornbusch v. State, 262 S.W.3d 432, 433-34, 438 (Tex. App.-Fort Worth 2008, no pet.), the Fort Worth Court of Appeals upheld a driving-while-intoxicated conviction based on the evidence that: (1) the car smelled of alcohol; (2) the police officer noticed that Dornbusch had bloodshot eyes, slurred speech and appeared disoriented; and (3) Dornbusch displayed all six clues of intoxication when performing the HGN test. Additionally, in this case, the record contains Trooper Sanders's opinion, offered without objection, that at the time of the encounter Miller had lost the normal use of his mental and physical faculties. There is also evidence that Miller operated the pickup in a public place. Trooper Sanders's testimony established that just before the stop he observed the pickup being driven on Highway 87. As defined by the Texas Penal Code, a "public place" includes streets and highways. Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2008). Trooper Sanders testified that he saw Miller step out of the pickup when it stopped and then specifically identified Miller as the person he had stopped. According to Trooper Sanders, Miller told him he was not driving, but was only "crossing the street." All of this testimony supports the jury's conclusion that Miller was the person who had operated the pickup while it was on Highway 87. We conclude that legally sufficient evidence supports Miller's conviction for driving while intoxicated. When reviewed in a neutral light, the same evidence discussed above also provides a factually sufficient basis to support Miller's conviction for driving while intoxicated. See Dornbusch, 262 S.W.3d at 438. Only one witness, Trooper Sanders, testified about the stop that led to Miller's arrest for driving while intoxicated. Miller did not testify. In his brief, Miller does not assert or argue that Trooper Sanders's testimony is outweighed by the greater weight of any contradictory evidence and does not point to any evidence to contradict Trooper Sanders's testimony that Miller was intoxicated. We conclude that the evidence is factually sufficient to support Miller's conviction for driving while intoxicated. The evidence is also legally and factually sufficient to support the jury verdict with respect to Miller's two prior convictions for driving while intoxicated. On appeal, Miller does not advance any argument to challenge the sufficiency of the State's evidence that resulted in the jury's finding him guilty of two prior misdemeanor offenses for driving while intoxicated. Based on these two prior convictions and Trooper Sanders's testimony about the circumstances leading to Miller's arrest on February 19, 2006, the jury found Miller guilty of felony driving while intoxicated. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2008) (An offense under section 49.04 of the Texas Penal Code is a felony offense if the person has twice been previously convicted of any other offense relating to the operating of a motor vehicle while intoxicated). (2) In summary, we conclude that the evidence is legally and factually sufficient to establish Miller's guilt of felony driving while intoxicated. We overrule Miller's first issue. Batson Challenge Miller's second issue contends the trial court erred by failing to grant his Batson challenge. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006); Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). However, the transcript of the trial reflects that Miller did not assert a Batson challenge during trial. Moreover, Miller provides no argument or supporting authority for this claim. Consequently, Miller failed to preserve this complaint for appellate review. See Tex. R. App. P. 33.1(a); Reese v. State, 936 S.W.2d 327, 328 (Tex. App.-Tyler 1996, pet. ref'd) (holding that Batson complaint not preserved when no objection was made in the trial court and issue was not briefed on appeal). Having overruled Miller's two issues, we affirm the judgment. AFFIRMED. _____________________________ HOLLIS HORTON Justice Submitted on January 5, 2009 Opinion Delivered February 4, 2009 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ. 1. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006); Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) . 2. Although the Legislature amended the enhanced offense provision of the Texas Penal Code after the commission of the alleged offense, there were no changes in the section pertinent to this appeal. Compare Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2008) with Act of May 23, 2007, 80th Leg., R.S., ch. 662, §§ 4,5, 2007 Tex. Gen. Laws 1237, 1237-38. Therefore, we cite the current version.