Christopher Merwin v. State

IN THE TENTH COURT OF APPEALS No. 10-07-00182-CR Christopher Merwin, Appellant v. The State of Texas, Appellee From the 40th District Court Ellis County, Texas Trial Court No. 31,469CR MEMORANDUM Opinion Merwin appeals his conviction for driving while intoxicated with a child passenger. See Tex. Penal Code Ann. § 49.045(a) (Vernon Supp. 2007). In one issue, Merwin contends that the evidence was legally insufficient. “In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); accord Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex. Crim. App. 1982). “A ‘legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.’” Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)); accord Moore v. State, 143 S.W.3d 305, 318 (Tex. App.—Waco 2004, pet. ref’d). Merwin argues: “In the Instant case, the only evidence indicating his guilt is the opinion testimony of the officer. The evidence was not sufficient.” (Br. at 16 (citing Stuart v. State, 933 S.W.2d 555; Friedel v. State, 832 S.W.2d 420)); see Stewart v. State, 933 S.W.2d 555 (Tex. App.—San Antonio 1996, pet. ref’d); Friedel v. State, 832 S.W.2d 420 (Tex. App.—Austin 1992, no pet.). “The testimony of an officer that a person is intoxicated provides sufficient evidence to establish the element of intoxication.” Hartman v. State, 198 S.W.3d 829, 835 (Tex. App.—Corpus Christi 2006, pet. dism’d); see Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977); Smith v. State, 135 S.W.3d 198, 200 (Tex. App.—Waco 2004), rev’d on other grounds, 158 S.W.3d 463 (Tex. Crim. App. 2005). The State points primarily to a Department of Public Safety trooper’s testimony. Merwin almost collided with another vehicle when attempting to drive his car onto Interstate 35. Merwin’s breath had a strong odor of an alcoholic beverage, and Merwin’s eyes were glassy and his speech slurred. Merwin performed very poorly on standardized field sobriety tests. Merwin admitted that he had drunk one beer. Merwin refused the trooper’s request that Merwin submit to the taking and analysis of a specimen of Merwin’s breath. A rational juror could have found beyond a reasonable doubt that Merwin was intoxicated. The evidence that Merwin was intoxicated was legally sufficient. We overrule Merwin’s issue. Having overruled Merwin’s sole issue, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed January 2, 2008 Do not publish [CR25]