Miguel Portillo v. State

Opinion filed December 15, 2005 Opinion filed December 15, 2005 In The Eleventh Court of Appeals __________ No. 11-05-00023-CR __________ MIGUEL PORTILLO, Appellant V. STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1257318 O P I N I O N The jury convicted Miguel Portillo of the misdemeanor offense of driving while intoxicated. The trial court assessed his punishment at confinement for one year in the Harris County Jail. Appellant asserts that the evidence is legally and factually insufficient to support his conviction. After reviewing all of the evidence presented, we affirm. Background Facts On September 7, 2004, Officers Steve Twitty and Gary Smidt of the Harris County Sheriff=s Department stopped appellant for speeding after observing him driving sixty miles per hour (mph) in a forty or forty-five mph speed zone.[1] Upon approaching appellant=s pickup and speaking to him, Officer Twitty smelled a strong odor of alcohol on appellant=s breath and noticed that his speech was slurred. Officer Twitty also observed an open twelve-ounce bottle of beer in a cup holder next to appellant. At Officer Twitty=s request, appellant stepped out of his pickup and consented to a search of his vehicle. During the search, Officer Twitty touched the beer in the cup holder and noticed that it was still cold and damp. In the back seat of the pickup, Officer Twitty found an empty beer bottle and a beer bong.[2] An ice chest with five or six beers was found in the bed of appellant=s pickup. After the search, appellant agreed to perform field sobriety tests, namely the Horizontal Gaze Nystagmus (HGN) test,[3] the walk-and-turn test, and the one-legged-stand test. Based on appellant=s performance on the tests, his physical appearance and demeanor, and the alcohol found in his pickup, the officers determined that appellant was intoxicated and arrested him. Legal & Factual Sufficiency To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). We review the fact- finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Due deference must be given to the fact- finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). To prove appellant guilty of DWI, the State was required to establish beyond a reasonable doubt that he did not have the normal use of his mental or physical faculties while operating a motor vehicle in a public place. Tex. Pen. Code Ann. '' 49.01(2)(A) & 49.04(a) (Vernon 2003). Appellant contends that the State did not meet its burden concerning the element of intoxication. His argument consists of several assertions that no Areasonable inference of intoxication@ could be drawn from the evidence that was presented at trial. Appellant particularly questions the probative value of testimony related to the HGN test. In Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), the Court of Criminal Appeals was unable to conclude that the HGN technique was a sufficiently reliable indicator of precise blood alcohol content.[4] Emerson, 880 S.W.2d at 769. If the testimony related to the HGN test was the only evidence of appellant=s intoxication, this argument would have limited merit. However, in addition to the evidence related to the HGN test, the record also shows that appellant exhibited slurred speech and a strong odor of alcohol on his breath. Furthermore, from the officers= descriptions of appellant=s performance on the walk-and-turn test and the one-legged-stand test, the jury learned that appellant had difficulty maintaining his balance and following directions. The jury also heard evidence that an open, partially-consumed, cold and damp beer bottle was located in the cup holder next to appellant; that an ice chest with five or six beers was found in the bed of his pickup; and that a beer bong and an empty beer bottle were discovered in the back seat of his pickup. The jury additionally learned that appellant refused to take a breath test at the station. Refusal to perform such a test can be considered by the jury as evidence of intoxication. Scott v. State, 914 S.W.2d 628, 630 (Tex. App.CTexarkana 1995, no pet.). Finally, appellant admitted during trial that he consumed beer at a bar prior to being stopped. Considering all of this evidence together, a rational jury could find that appellant was intoxicated. Viewed in the light most favorable to the verdict, we conclude that the record contains legally sufficient evidence of intoxication. Point of Error No. 1 is overruled. We likewise conclude that the record contains factually sufficient evidence of intoxication. Viewing the evidence in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the contrary evidence is not so strong that the State=s burden of proof could not be met. Appellant testified that he had consumed less than two beers that night, and his friend, Marvin Segovia, testified that he did not believe appellant was intoxicated when they were together. Another friend, Antonio Salazar, provided an explanation for the presence of beer in appellant=s pickup. We do not believe this evidence is so strong as to prevent the State from meeting its burden. The jury is the sole judge of the credibility of the witnesses and of the weight to be given their testimony, and the jury is entitled to accept one version of the facts and reject another. Tex. Code Crim. Pro. Ann. arts. 36.13 (Vernon 1981) & 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). There is nothing in the record to suggest that it was irrational for the jury to accept the testimony of the police officers and reject the testimony of appellant and his friends. Point of Error No. 2 is overruled. Conclusion The evidence is legally and factually sufficient to support appellant=s conviction. The judgment of the trial is affirmed. RICK STRANGE JUSTICE December 15, 2005 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., and McCall, J., and Strange, J. [1]Officer Smidt testified that the posted speed limit was forty mph. Officer Twitty testified that it was forty-five mph. [2]The record describes a beer bong as a lengthy plastic tube with a large funnel attached to the end used to drink beer. [3]Nystagmus is involuntary jerking of the eyes. Alcohol enhances a person=s nystagmus, and the HGN test is used by officers to identify enhanced nystagmus. [4]We note that the State did not charge appellant with the type of DWI in which intoxication is defined by the level of alcohol concentration in a person=s blood. See Section 49.01(2)(B). The State was not, therefore, required to prove appellant=s precise blood alcohol content.