David Frank Morgan v. State

11th Court of Appeals Eastland, Texas Opinion David Frank Morgan Appellant Vs. No. 11-04-00133-CR -- Appeal from Howard County State of Texas Appellee The jury convicted David Frank Morgan of the felony offense of driving while intoxicated and assessed punishment at 15 years confinement. We affirm. On the morning of August 24, 2002, appellant was pulled over by Officer Will Miller of the Big Spring Police Department for running a stop sign. Upon contacting appellant, the officer smelled a strong odor of alcohol on appellant’s breath. The officer asked appellant if he had been drinking, and appellant said that he had had “one or two” drinks. After that, the officer performed field sobriety tests on appellant. The first test was the one-legged stand. Appellant had difficulty maintaining his balance, and he failed the test. The second test was the walk-and-turn. After again struggling to maintain his balance, appellant refused to complete the test. Based on his observations, the officer determined that appellant was intoxicated and placed him under arrest. Another officer then arrived at the scene with a battery-operated instrument that tests for the presence of alcohol in the breath. The instrument confirmed that there was alcohol present in appellant’s breath. Officer Miller transported appellant to the police department and, once there, asked appellant to give a breath specimen for the breath intoxilyzer. Appellant refused. In his sole issue on appeal, appellant contests the factual sufficiency of his conviction. In order 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, 481 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). To support appellant’s conviction for felony DWI, the State was required to show that appellant operated a motor vehicle in a public place while intoxicated and that appellant had two previous convictions for DWI. TEX. PEN. CODE ANN. §§ 49.04(a) & 49.09(b)(2) (Vernon 2003 & Supp. 2004 - 2005). Appellant stipulated to the two prior DWI convictions, and there was undisputed testimony that appellant was operating a motor vehicle in a public place. The only element appellant contests is intoxication. The testimony of Officer Miller provides sufficient evidence of appellant’s intoxication. The officer detected a strong odor of alcohol on appellant’s breath. The officer observed appellant fail two field sobriety tests. Appellant admitted to the officer that he had consumed alcohol prior to his arrest, and the results of the portable breath test confirmed the presence of alcohol on appellant’s breath. Furthermore, at the police station, appellant refused to provide the officer with a specimen of his breath for the intoxilyzer. Appellant’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Cr.App.1988); Thomas v. State, 990 S.W.2d 858, 860 (Tex.App. - Dallas 1999, no pet’n). Based on these facts, Officer Miller testified that, in his opinion, appellant was intoxicated. Opinion testimony by the arresting officer is, without more, sufficient to prove appellant’s intoxication. See, e.g., Tutt v. State, 940 S.W.2d 114, 123 (Tex.App. - Tyler 1996, pet’n ref’d); Oliphant v. State, 764 S.W.2d 858, 860 (Tex.App. - Corpus Christi 1989, pet’n ref’d). Appellant contends, however, that “[v]irtually every aspect of Officer Miller’s testimony was rebutted by defense witnesses.” We disagree. Appellant’s father, wife, and friend each testified that they did not believe appellant was intoxicated. This belief, however, is not enough evidence to discredit the observations of the police officer. The fact finder is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Cr.App.1981); see also TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981). One theory of the facts may be accepted by the jury, while another is rejected. See Pizano v. State, 489 S.W.2d 284, 285 (Tex.Cr.App.1973). The jury was presented with conflicting evidence and could accept or reject reasonably competing theories of the case. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Cr.App.2001). There is nothing in the record to suggest that the jury’s decision to accept the testimony of the police officer and reject the testimony of appellant’s witnesses was irrational. Viewing the evidence in a neutral light, we find that the proof of appellant’s guilt is not so obviously weak as to undermine our confidence in the jury’s verdict and that the evidence to the contrary is not so strong that the State’s burden of proof could not have been met. Appellant’s sole issue is overruled. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE February 10, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.