Claude McCoy Markey, II v. State

Affirmed and Memorandum Opinion filed February 6, 2003 Affirmed and Memorandum Opinion filed February 6, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00281-CR ____________ CLAUDE McCOY MARKEY, II, Appellant V. THE STATE OF TEXAS, Appellee _____________________________________________________________________ On Appeal from the County Court at Law No. 2 Brazos County, Texas Trial Court Cause No. 160M-02 _____________________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant, Claude McCoy Markey, II, was convicted by a jury of Driving While Intoxicated – Second Offense. In two points of error, appellant challenges the factually sufficiency of the evidence adduced to support his conviction. We affirm. I.  FACTUAL BACKGROUND Appellant’s conviction arises out of an October 6, 2001, automobile accident in Bryan, Texas. Driving from Huntsville to Bryan, after a family visit, Sandra Walston noticed a vehicle approaching the intersection of Highways 158 and 60 at a high rate of speed. According to her trial testimony, she watched as the driver of the vehicle disregarded the stop sign at Highway 60 and almost collided with her own automobile. Walston testified that the vehicle came within two feet of her automobile. She then saw the vehicle enter a ditch, slam through a fence and finally come to a halt in a field. Walston went to investigate the scene to determine if anyone might have been injured. Observing only appellant in the vehicle, she watched as he “rather rolled out of the car” and “tumble[d] out onto the ground.” A licensed vocational nurse, Walston also testified that to her it was “quite obvious” that appellant had been drinking alcohol. Another witness, Nicholas James Samford, did not see the near collision but arrived at the scene before Walston. He testified that he came upon the car in the ditch. Samford noticed the vehicle’s engine was still running and that the driver—whom he later identified as appellant—was still inside it. Samford testified that he asked appellant if any other individuals were with him in the vehicle. After several unsuccessful requests, appellant ultimately responded that no one else was with him. Samford testified that he smelled a “pretty strong” odor of alcohol and that from his behavior and mannerisms it was “pretty evident” that appellant was under its influence. Officer Steven Spillars of the Bryan Police Department was dispatched to the scene of the accident. In addition to the strong odor of alcohol, the officer took notice of appellant’s bloodshot eyes, slurred speech, and difficulty in keeping his balance. Spillars then administered the field sobriety tests. On the horizontal gaze nystagmus test, Spillars noticed six clues, and on the vertical gaze nystagmus test, he noticed six of eight clues suggesting intoxication. Spillars testified that on the vertical gaze nystagmus test six clues suggest a blood alcohol level above the legal limit. On the walk and turn test, Spillars observed four of eight clues. Walston, who observed the administration of the tests, testified that appellant’s performance was “very wobbly” and that he kept “falling over” and could not follow the officer’s instructions. The jury convicted appellant of Driving While Intoxicated – Second Offense. II.  POINTS OF ERROR In two issues, appellant contends the evidence was factually insufficient to support his conviction because: (1) no evidence was introduced that appellant was intoxicated at the time of driving and the cause of the accident; and (2) no evidence was presented that appellant was observed operating a vehicle in a public place. III.  STANDARD OF REVIEW In reviewing for factual sufficiency, an appellate court will set aside the fact finder’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). An appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 133. Accordingly, we are only authorized to set aside the fact finder’s finding in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. IV.  ANALYSIS A. The Intoxication Element A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code § 49.04. In his first point of error, appellant challenges the factual sufficiency of the evidence put forth that he was intoxicated at the time of driving. To convict for the offense of Driving While Intoxicated, the State must prove appellant was intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a). Under the Texas Penal Code, a person is intoxicated if he does not have the normal use of mental or physical faculties by reason of the introduction of alcohol into the body. Id. § 49.01(2)(a). When considering the intoxication element, erratic driving and a collision are instances of impaired judgment which can be sufficient to establish that a driver did not have the normal use of his mental faculties. Chaloupka v. State, 20 S.W.3d 172, 175 (Tex. App.—Texarkana 2000, pet. ref’d). Walston saw appellant’s vehicle disregard the stop sign at the intersection and nearly collide with her own vehicle. She then observed appellant’s vehicle land in a ditch and crash through a fence. She saw him “tumble” from the vehicle and behave as if he were under the influence of alcohol. The evidence shows that the appellant’s vehicle drove erratically and caused both a near-collision and an accident. Id. The lack of judgment demonstrated by this conduct is circumstantial evidence that appellant did not have the normal use of his mental faculties. Id. In this case, there was also evidence that appellant refused to give a breath or blood specimen upon request by the arresting officer. Appellant performed poorly on the field sobriety tests, and the arresting officer noticed a strong odor of alcohol emanating from appellant, as well as bloodshot eyes, slurred speech, and difficulty maintaining balance. See Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“The testimony of a police officer that an individual is intoxicated is probative evidence of intoxication.”) Furthermore, both Walston and Samford observed behavior by appellant shortly after the accident which led them to conclude that appellant was intoxicated. Both Samford and the police officer noted that during the field sobriety tests appellant was stumbling and could not keep his balance. Chaloupka, 20 S.W.3d at 175 (noting that testimony of trooper who later come on the scene of the accident and found driver smelling of alcohol, among other factors, creates an inference of intoxication and that the erratic driving was attributable to alcohol consumption). These facts also constitute circumstantial evidence that he had been driving without the normal use of his physical faculties. Taking all of these facts together, we do find that the evidence of appellant’s intoxication at the time of driving is factually insufficient. Accordingly, appellant’s first point is overruled. class=Section3> B. The Operating a Vehicle in a Public Place Element In his second point of error, appellant contends the evidence was factually insufficient to support his conviction because no evidence was presented that he was observed operating a vehicle in a public place. In the immediate aftermath of the wreck, two witnesses saw appellant in or near the vehicle. After witnessing the accident, Walston went to appellant’s vehicle to see if anyone was injured. She observed only appellant in the vehicle and did not see any other individuals. See Yeary v. State, 734 S.W.2d 766, 769 (Tex. App.—Fort Worth 1987, no pet.) (noting that among the ample evidence demonstrating that the defendant was driving the vehicle included testimony by a witness who saw the accident and saw no one else in or near the vehicle immediately after the accident). Likewise, Samford saw no one but appellant in the vehicle so soon after the accident that the engine was still running. The jury could reasonably infer that appellant had been driving the truck from the evidence that the truck was stopped in the with its engine running with appellant sitting behind the steering wheel shortly after the accident occurred. See Pope v. State, 802 S.W.2d 418, 420 (Tex. App.—Austin 1991, no pet.); Pace v. State, No. 01-89-00860-CR, 1990 WL 71337, at *2-3 (Tex. App.—Houston [1st Dist.] 1990, pet ref’d) (not designated for publication). Considering this evidence together, we find the evidence was factually sufficient to support appellant’s conviction. Accordingly, appellant’s second point is overruled. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed February 6, 2003. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b).