Alisha Andrew Payne v. State

NO. 12-02-00312-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ALISHA ANDREWS PAYNE, § APPEAL FROM THE 173RD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS MEMORANDUM OPINION Alicia Andrews Payne ("Appellant") was convicted of intoxication manslaughter and sentenced to seventeen years of imprisonment. In one issue, Appellant contends that the evidence is legally and factually insufficient to support her conviction. We affirm. Background At around noon on July 31, 2000, Appellant was driving westbound on Highway 334 in Seven Points, Texas, when she struck and killed Janette Taylor, a pedestrian who was walking along the highway in the same direction Appellant was traveling. After an investigation by the Seven Points Police Department, Appellant was indicted for intoxication manslaughter on December 28. Appellant pleaded "not guilty" to the charge and her case went to trial on August 19, 2002. The jury found Appellant guilty of intoxication manslaughter and also found that Appellant had used a motor vehicle as a deadly weapon during the commission of the offense. The jury also sentenced her to 17 years of imprisonment and imposed a $10,000.00 fine. Appellant now challenges her conviction on appeal and argues that the evidence is legally and factually insufficient to support the conviction because the State failed to prove beyond a reasonable doubt that Appellant was "intoxicated," as defined in the indictment. Sufficiency of the Evidence Standard of Review Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982). In considering factual sufficiency, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. We review the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute and compare it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. Our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). Applicable Law A person commits the offense of intoxication manslaughter if the person "1) operates a motor vehicle in a public place . . . and 2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake." Tex. Pen. Code Ann. § 49.08 (Vernon 2003). "Intoxicated" is defined as (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. Tex. Pen. Code Ann. § 49.01(2)(A), (B) (Vernon 2003). A witness does not have to be an expert to testify that a person he observes is intoxicated by alcohol; therefore, lay opinion testimony by a police officer that a person is intoxicated is probative evidence that a person was "drunk." Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.- Houston [1st Dist.] 2002, pet. ref'd). However, the rule as to whether a non-expert witness may testify whether a person is under the influence of drugs is different. Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973). The rationale is that intoxication by alcohol is "of such common occurrence" that its recognition requires no expertise. Id. When a person is under the influence of drugs, expert testimony must connect that person's symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle. Id. at 286. Nevertheless, in the absence of direct opinion testimony, such intoxication may be shown by circumstantial evidence. Id. at 285. The Evidence In support of its case-in-chief, the State called Simon Bennington ("Bennington") to testify. Bennington stated that on July 31, he and Anthony Murphey, his employee, were traveling in his work truck westbound on Highway 334 toward Seven Points. At some point in time, Bennington looked in his rearview mirror and saw a Chevrolet pickup truck, driven by Appellant, "swerving back and forth across the highway." He stated that the truck was "going every which way" and that it was "going off the shoulder to the right, it was going into oncoming traffic on the left" by "going across the white line to the right and across the dotted line to the left." Bennington testified that the truck was speeding up and slowing down and that the truck maneuvered in this manner for about four to five minutes. Once the two vehicles traveled into the city limits of Seven Points, Bennington tried to slow down in order to make the truck behind him slow down as well because he was afraid that it was going to "kill somebody and have a head-on collision or run me off the road." After his efforts to slow the truck failed, Bennington, a volunteer fireman for Gun Barrel City, contacted the Seven Points Police Department on his police radio and asked the dispatcher to send an officer to stop the truck. Bennington continued to watch the truck in his rearview mirror, and a few minutes after Bennington placed the call, he saw the truck strike Janette Taylor ("Taylor"). He noticed that before the truck hit her, Taylor was walking in the same direction he and Appellant were traveling "about four feet" outside of the "white line," and that he did not have to evade Taylor when he passed her. As soon as he saw the collision, Bennington notified the dispatcher and drove his truck across the roadway in order to block oncoming traffic. He then attended to Taylor, noticed that she was still breathing, and went to the truck that hit Taylor to talk to the driver. When Bennington approached Appellant, he asked her, "Do you know what in the hell you just did?" Appellant gave no response. Delvin Hatley ("Hatley"), a patrol sergeant for the Seven Points Police Department, testified that when he arrived at the scene of the accident, Aaron Lloyd ("Lloyd"), who was also a police officer with the Seven Points Police Department, a deputy from the Henderson County Sheriff's Department, and two officers from Tool were already at the scene. He took some pictures from Appellant's vantage point in her truck and noted that there was nothing obstructing Appellant's view while she was driving the truck. After two hours at the scene of the accident, Hatley went back to the police station, where Appellant and Lloyd were waiting. Appellant consented to taking a field sobriety test, and Hatley then conducted the "horizontal gaze nystagmus" (HGN) test. (1) The test revealed that "[s]he had a clear distinct nystagmus, a maximum deviation, and she had an onset of nystagmus prior to 45 degrees." These six clues (three in each eye) demonstrated to Hatley that Appellant was intoxicated. However, after Appellant took the test, Chief Daniels, the police chief of the Seven Points Police Department, decided to release her and she was "at-large for the charges." On cross-examination, Hatley stated that although he did not include the fact that he gave Appellant the HGN test or the results of that test in the narrative report he made, he did recall giving the test to Appellant. Hatley further testified that the results of an HGN test give good "clues" of intoxication by drugs and alcohol. He agreed that the HGN test is just one of three standard field sobriety tests that are sanctioned by the National Highway Traffic Safety Administration, and that the HGN test, in and of itself, is not necessarily a good indicator of intoxication. He further acknowledged that nystagmus, or "jerking of the eyes," can occur naturally in a small percentage of the population or is a result of pathological and neurological disorders as well as brain injuries. On re-direct examination, Hatley testified that other signs of intoxication include a person's "demeanor, the way they walk, their balance, the way they talk, [and] things they say." He stated that after Appellant was taken to the police station, she exhibited signs that indicated "some sort of intoxication." Although Hatley's contact with Appellant was not "extensive," he noticed that her speech was "poor and slurred," she had poor balance, and she "mumbled some things" that he could not understand. He also noticed that Appellant exhibited the "highest" and "distinct" form of nystagmus in each of the clues in Appellant's eyes, and stated that he believed that on July 31, Appellant did not have the normal use of her mental and physical faculties. Lloyd testified that around 1:00 p.m. on July 31, he was dispatched to the scene of the accident. When he arrived at the scene, he found Taylor lying on the pavement, receiving aid from a "civilian." After he checked on Taylor, he went to Appellant's truck in order to determine what had caused the collision. He began asking Appellant a series of questions, such as "where she was coming from and if she had anything to drink." He stated that Appellant "referred frequently to her husband and her husband had left her; she'll never see her husband again; she'll never see her son again" and that everything she said was ambiguous and not related to the questions he had asked her. Appellant appeared drowsy to Lloyd and her eyes seemed "glazed over and without depth." When Appellant spoke, she spoke "slowly [and] deliberately, but her voice would raise and then drop low enough where you couldn't hear her." After she spoke to Lloyd, he escorted Appellant to his vehicle. During their walk to Lloyd's vehicle, Lloyd kept one hand on Appellant because he thought that she might fall. Appellant was walking with no direction, and every few seconds Lloyd had to direct Appellant either verbally or by "pulling on her" to try to direct her to the vehicle because she was "incoherent" and "didn't know where she was going." After Appellant sat down in Lloyd's vehicle, Lloyd summoned the EMS personnel who had arrived at the scene because he thought that she needed medical attention. After the EMS personnel attended to Appellant, Lloyd took her to the police station. He confirmed that Hatley performed the HGN test. Appellant was also asked to perform the "walk-and-turn" and the "one-legged stand" tests, but she did not perform those tests. Lloyd stated that after Appellant performed the HGN test, the chief of police decided to release her. When asked whether he would have released Appellant or arrested her, Lloyd replied that he would have arrested her because he believed that she was intoxicated. Lloyd testified that Appellant's incoherence, inability to answer questions directly, "the glazy look in her eyes without focus," and the way that she walked "slumped with no direction and would turn basically wherever momentum took her" led him to believe that she was intoxicated. Although Lloyd did not smell any alcohol on Appellant at that time, he thought that Appellant may have been drinking vodka because "oftentimes people can drink vodka, become intoxicated, and you can't smell it on their person." After a search of Appellant's vehicle, however, Lloyd did not find any vodka bottles. On cross-examination, Lloyd stated that he could not remember whether Appellant had a "boot on her foot" or if crutches were located in her truck. He agreed with the assertion that if Appellant's foot was broken or if it had previously been operated on, then she would not have been able to easily walk to Lloyd's vehicle. Lloyd also acknowledged that he did not write anything in his report about Appellant being drowsy or that her eyes were "glazed over," but he specifically remembered Appellant exhibiting those conditions. On re-direct examination, Lloyd stated that after the accident, Appellant told him that Taylor had walked out in front of her. When asked if she had been drinking and how long it had been since her last drink, Appellant replied that she had drank one 16-ounce beer "about five hours ago" and that she was not drunk. Lloyd asked Appellant if she had been injured during the accident, but Appellant "had an incoherent response." Based upon Lloyd's conversations with Appellant after the accident, he believed that she did not understand the events that had previously occurred. Wade Norris ("Norris"), a deputy with the Henderson County Sheriff's Department, testified that after he arrived at the accident scene, he parked his vehicle behind Appellant's truck and went to speak to her. As Norris was talking to Appellant, he noticed that she "appeared to be very intoxicated at the time and very confused." Although he could not smell any alcohol on Appellant, he was sure she was intoxicated. When he asked Appellant where she had come from, she "didn't know where she was at" and "didn't realize she was in Seven Points." Although Appellant told Norris she was traveling from Gun Barrel City, she did not know the location in Gun Barrel City. He further testified that Appellant "acted just like an intoxicated person" because "her speech was slurred" and that when he asked her if she knew what had happened, she said she did not know. When Norris looked inside Appellant's truck, he did not notice any blood or anything on Appellant to indicate to him that she had been injured. Based on his conversations with Appellant and observations of her actions, Norris believed that she was intoxicated and as a result, did not have the normal use of her mental and physical faculties. On cross-examination, Norris agreed that he did not perform any sobriety tests on Appellant after he arrived at the scene of the accident and that he based his opinion regarding Appellant's intoxication on the conversation he had with Appellant. Norris also agreed that when an individual has slurred speech and the smell of alcohol is absent, that does not necessarily mean that a person is intoxicated. Furthermore, Norris admitted he could give only his subjective opinion that Appellant was intoxicated because he was not aware of any field sobriety tests that she performed. Herbert Brydon ("Brydon"), a police officer in Tool, Texas, stated that after he arrived at the accident scene, he went to Appellant's vehicle to make sure that she did not leave. Officer Norris later relieved Brydon, and Brydon found a walking cane in a ditch that ran parallel to the highway as he walked away from the vehicle. Brydon stated that he believed that someone involved in the accident had been using the cane prior to the accident. Wayne Nutt ("Nutt"), an investigator for the Seven Points Police Department, testified that on August 4, 2000, he took an oral statement from Appellant at her home. (2) After Nutt explained to Appellant her Fifth and Sixth Amendment rights, Appellant agreed to talk to him about the accident. Appellant stated that at around noon on July 31, she was at work and began to feel sick, so she decided to go home. As Appellant was driving home, she was "traveling down the road and the next thing [she] knew, the next thing [she] knew, [she] didn't see the woman and [Taylor] was on the pavement." All Appellant knew was that she had "[run] over something," so she stopped. Appellant stated that after she hit "something," she was "in shock" but did not know that she had hit a person. Appellant further stated that about two months before August 4, she had fallen through some bleachers at a rodeo in Kemp, Texas and fractured her foot in two places. She also told Nutt that on the day of the accident, she had been wearing a "walking boot" on her broken foot and she had crutches in her truck. Appellant stated that when she got up on the morning of July 31, she had diarrhea, but other than that, she was fine. She went to work until noon, then started feeling sick. When Nutt asked Appellant if she recalled telling one of the police officers at the accident scene that she had consumed a 16-ounce beer about five hours before noon on that day, Appellant denied that she had made such a statement to the officer and said that she was "not a drinker." Appellant then told Nutt that on July 31, she had taken 1) Soma, an over-the-counter sleeping aid, 2) Paxil, an antidepressant medication, 3) Lipitor, for high cholesterol, 4) Synthroid, for hypothyroidism, and 5) Lortab, to relieve the pain in her foot. Appellant had been taking Paxil for about ten years. She also stated that she had taken Lortab and Lipitor that morning and again before lunch. At around 11:00 a.m., she ate a tuna fish sandwich, and shortly after she ate, she began to feel sick and decided to go home. As she was driving home, Appellant told Nutt that she did not feel disoriented. When told that witnesses said that she was driving erratically, Appellant stated that her "truck was out of line in the front" and that the truck had a "tire that doesn't really fit." Appellant further said that she did not "go off in the grass" while driving and that she "never even seen" Taylor as she was driving on Highway 334. She also told Nutt that the only thing she could remember was that she was "on the road" and that she was "basically in shock." After the accident occurred and Appellant left the Seven Points Police Department, an ambulance came to her home and took her to Kaufman Hospital in Kaufman, Texas because she was in shock. On cross-examination, Nutt could not recall whether Appellant was in a "walking boot" at the time he took her statement. However, Nutt agreed that he had received information from officers who investigated the accident that Appellant had been wearing a "walking boot" on the day of the accident and that the officers had found crutches in Appellant's truck. Amanda Cline ("Cline") worked in the same building as Appellant. She testified that on the morning of July 31, Appellant told her she was sick and asked if Cline would answer the phone. Cline noticed that Appellant seemed "like she was sick and kind of shaky-like." After the accident occurred, Cline stated that Appellant called and when asked if she was alright, Appellant said that "she didn't remember anything about it, she didn't remember where it happened." When cross-examined, Cline noted that when Appellant arrived to work at 8:30 a.m. that morning, she seemed fine. Cline also stated that based on her observations of Appellant on the morning of July 31, nothing indicated to her that Appellant would not have been able to operate a motor vehicle. Jackie Parchman, ("Parchman"), a forensic pathologist at the Dallas County Medical Examiner's Office, testified that Taylor died of multiple blunt force injuries she sustained as a result of being struck by Appellant's truck and that a motor vehicle could sometimes be a deadly weapon. Parchman further stated that Soma is "designed to make you get sleepy," "become drowsy and less alert and fall asleep." She also testified that Lortab is "hydrocodone with some acetaminophen" and is a "mid-level narcotic" pain medication. She also agreed with the assertion that drinking one beer could result in that person losing the normal use of his or her mental or physical faculties. Anthony Murphey ("Murphey"), a co-worker of Bennington's who was riding with Bennington at the time of the accident, testified that when he first observed Appellant's truck, it was traveling behind his vehicle and was "swerving on the outside of the road," meaning that it was swerving into oncoming traffic. Appellant then corrected her steering and traveled in the proper lane. Shortly thereafter, Murphey watched Appellant's vehicle drive "off in the ditch" on the side of the lane she was traveling in. Murphey stated that for thirty or forty yards, one half of Appellant's truck was off of the roadway. Appellant then steered left, across the proper lane and back into oncoming traffic. Murphey testified that Appellant drove into oncoming traffic for about twenty yards and that as she was traveling in the improper lane, other vehicles had to move out of her way. Appellant then steered into the correct lane, where she traveled "for some time." Murphey stated that he did not see Taylor walk into the road and that when Appellant's vehicle struck Taylor, about one half of Appellant's vehicle was off the roadway. After Appellant hit Taylor, Murphey watched Appellant pull her truck over onto the side of the road. Bennington then turned the truck around, and Murphey ran over to Appellant's truck and pulled the keys out of the ignition. Appellant called Terry Jones ("Jones"), a paramedic for East Texas Medical Center, as her sole witness. Jones stated that on July 31, he was driving the second ambulance that arrived at the scene of the accident. After he arrived at the scene, he examined Appellant and noted in his report that she correctly answered questions regarding who she was, where she was located, the time of the examination, and the event that had just occurred. Jones also said that he found crutches in Appellant's truck when he went to examine her and that Appellant was wearing a "foot support on her left foot." When he saw Appellant walking, he noticed that she appeared steady. Analysis In the indictment, the State alleged that Appellant was intoxicated "by not having the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a dangerous drug, or a combination of two or more of those substances, or any other substance into the body. . . ." Appellant argues that based on Smithhart, the State failed to present legally and factually sufficient evidence of her intoxication because there was no expert testimony to prove that her intoxication was caused by the introduction of alcohol, a controlled substance, a drug, or a dangerous drug, or a combination of two or more of those substances, or any other substance into her body. In other words, Appellant contends that "[t]he evidence is legally and factually [in]sufficient to show the 'by reason of' conjunction required to prove intoxication." In Smithhart, the State attempted to prove that Smithhart's intoxication caused a traffic accident in Lewisville on April 22, 1972. The State based its case on the testimony of one witness, Gene Bolden ("Bolden"), an officer in the Lewisville Police Department. Smithhart, 503 S.W.2d at 285. At trial, Bolden testified that when he observed Smithhart, he noticed that Smithhart was "'incoherent, his eyes were glassy, the pupils were dilated, and he was unsure of himself.'" Id. Smithhart told Bolden that he had 1) been to the doctor's office to receive treatment for a broken foot and received a shot for pain, 2) consumed several shots of vodka earlier in the day, and 3) taken seven Valiums that day. When the State asked if Bolden had an opinion as to whether Smithhart was under the influence of drugs, the trial court sustained Smithhart's objection to such testimony on the basis that no predicate had been laid to demonstrate that Bolden was an expert. Id. Nevertheless, Smithhart was convicted of driving while intoxicated and was placed on probation for a period of six months. Id. On appeal, Smithhart contended that the evidence was "insufficient to support the conviction." Id. In its analysis, the court of criminal appeals first noted the general rule in driving while intoxicated cases that in the absence of direct opinion testimony, intoxication may be shown by circumstantial evidence. Id. The court also observed that a non-expert witness may express his opinion that a person was drunk on his observation of the accused. Id. When dealing with an opinion regarding whether a person is under the influence of drugs, the court held that a non-expert witness may not testify that a person was under the influence of drugs because the effect from certain drugs is not like "alcoholic intoxication, which is 'of such common occurrence' that its recognition requires no expertise. . . ." Id. at 286 (citing Inness v. State, 106 Tex. Crim. 524, 527, 293 S.W. 821, 822 (1926)). Since there was no opinion testimony by a qualified witness as to whether Smithhart was under the influence of drugs, the court analyzed the evidence to determine whether the State had shown, by circumstantial evidence, that Smithhart was intoxicated. Id. at 285. The court noted that the only evidence to support Smithhart's conviction was the testimony of Bolden that 1) Smithhart's speech was incoherent and his eyes were glassy, 2) the point of impact of the accident was two feet from the center strip of the highway in the inside lane, 3) Smithhart stated he had just come from the doctor's office, 4) Smithhart had told Bolden he was taking Valium and had been drinking vodka that morning, and 5) Smithhart possessed an empty prescription bottle. Id. at 285-86. In holding that the evidence was insufficient to support the conviction, the court stated that [t]he missing essential element is a showing which would connect the symptoms observed by Bolden to a conclusion that appellant was under the influence of a drug to a degree rendering him incapable of safely operating a vehicle. Just as there was an absence of evidence to qualify Bolden to give his opinion on this point, so was there an absence of any other evidence from which the jury could draw such a conclusion. Id. at 286. The instant case is markedly different from Smithhart because 1) expert testimony connected Appellant's symptoms observed by the officers to the drugs she had taken and 2) the jury could have relied on circumstantial evidence to determine that Appellant was intoxicated "by reason of the introduction of alcohol, a controlled substance, a drug, or a dangerous drug, or a combination of two or more of those substances, or any other substance into the body. . . ." Dr. Parchman testified about two of the drugs, Soma and Lortab, that Appellant admitted taking on the morning of the accident in question. She told the jury that Soma is a sleeping pill that makes a person feel "drowsy and less alert and fall asleep." Dr. Parchman also testified that Lortab is "hydrocodone with some acetaminophen" and is a "mid-level narcotic" pain medication. Appellant admitted that she had consumed a 16-ounce beer that morning. Dr. Parchman's testimony, along with the officers' testimony that Appellant seemed "drowsy," her eyes seemed "glazed over and without depth," had poor balance, "mumbled some things" that they could not understand, and had "poor and slurred" speech supports the jury's verdict that Appellant was intoxicated. The description of the way Appellant was driving immediately before the accident occurred, coupled with Dr. Parchman's testimony and the officers' description of Appellant's demeanor and her performance on the sobriety tests, also provided further circumstantial evidence that the jury could have relied on in its determination that Appellant did not have the normal use of her mental or physical faculties by reason of the introduction of one or more substances into her body. Therefore, a rational trier of fact could have found the essential elements of intoxication manslaughter beyond a reasonable doubt. With regard to the factual sufficiency of the evidence, the record contains evidence that Appellant was ill and not intoxicated on the morning of the accident. We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) ("A jury is entitled to accept one version of the facts and reject another or reject any of a witness's testimony."). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt 932 S.W.2d at 96. Therefore, the jury was free to believe either the eyewitnesses', the officers' or Jones's version of the facts. The jury chose to believe the eyewitnesses' and the officers' accounts of what they saw, and what they witnessed supports the jury's determination that Appellant was intoxicated on the day of the accident. Therefore, the evidence supporting guilt is not so obviously weak, nor does the contrary evidence so clearly outweigh the supporting evidence, as to render Appellant's conviction clearly wrong and manifestly unjust. Appellant's sole issue is overruled. Conclusion Based upon our review of the record, we hold that the evidence is legally and factually sufficient to support the jury's verdict of guilt. Accordingly, the judgment of the trial court is affirmed. SAM GRIFFITH Justice Opinion delivered August 29, 2003. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (DO NOT PUBLISH) 1. Hatley testified that he was certified in giving the HGN test and that in order for him to have obtained that certification, he had to 1) complete a course on the test and 2) give the test a certain number of times within a certain period of time after completing the course. 2. Appellant objected to her statement prior to trial and prior to the introduction of the statement on the basis that Appellant did not intentionally, knowingly and voluntarily waive her right against self-incrimination before she gave the statement. The trial court overruled Appellant's objection, and she does not challenge the trial court's ruling on her objection on appeal.