Michael Eugene Hunt v. State

Affirmed and Memorandum Opinion filed October 9, 2008 Affirmed and Memorandum Opinion filed October 9, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00376-CR ____________ MICHAEL EUGENE HUNT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1108104 M E M O R A N D U M   O P I N I O N Appellant, Michael Eugene Hunt, appeals his conviction for felony driving while intoxicated for which he was sentenced to 26 years= imprisonment. In his sole issue, appellant argues that the evidence is factually insufficient to support his conviction. We affirm. BACKGROUND On July 24, 2006, Deputy Dennis Walker of the Harris County Sheriff=s Department observed appellant driving in an unsafe and erratic manner on the Sam Houston Toll Road. Appellant was changing lanes without signaling and reached speeds close to 100 miles per hour. Deputy Walker stopped appellant=s vehicle and, upon approaching appellant, noticed that appellant had a glazed look. Appellant had blood-shot eyes; he slurred his speech while conversing with Deputy Walker. Deputy Walker detected a strong odor of alcohol emanating from appellant=s breath and observed an open beer container within appellant=s reach in a cup holder behind the driver=s seat. Appellant told Deputy Walker that he had drank Aa couple of beers.@[1] Deputy Walker suspected that appellant was intoxicated and asked appellant to exit his vehicle to undergo field sobriety tests. Deputy Walker testified that appellant stumbled as he exited his vehicle and that his balance was unsteady. Deputy Walker first administered the horizontal gaze nystagmus test (AHGN@) on appellant. Appellant=s eyes jerked in a horizontal motion, indicating alcohol consumption. Deputy Walker then administered the walk-and-turn test. He demonstrated the test to appellant and then asked appellant to perform the test. Appellant missed his heel-to-toe step, used his arms for balance, and failed to walk in a straight line. After appellant faltered, he refused to perform any further sobriety tests and refused to give a breath sample for a breathalyzer test. Based on his observations, Deputy Walker concluded that appellant was legally intoxicated. Appellant was arrested and charged by indictment with felony driving while intoxicated. The indictment contained two enhancement paragraphs alleging that appellant had two prior convictions for driving while intoxicated. Appellant pleaded not guilty. A jury trial found him guilty of driving while intoxicated as a third offense. His punishment was assessed, enhanced by the two prior convictions, at 26 years in prison. In his sole issue, appellant challenges the factual sufficiency of the evidence on the element of intoxication. STANDARD OF REVIEW When reviewing the factual sufficiency of the evidence, we review all the evidence in a neutral light, favoring neither party. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust or (2) whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Id.; see also Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.CHouston [14th Dist.] 2008, no pet.). In reviewing a jury=s finding for factual sufficiency, we must give due deference to the jury=s determinations and refrain from substituting our judgment for that of the fact-finder. Newby v. State, 252 S.W.3d 431, 435 (Tex. App.CHouston [14th Dist.] 2008, pet. struck). It is the jury=s exclusive role to weigh the evidence and determine credibility. Rivera-Reyes v. State, 252 S.W.3d 781, 784-85 (Tex. App.CHouston [14th Dist.] 2008, no pet.). FACTUAL SUFFICIENCY In this case, the State was required to prove that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code ' 49.04(a).[2] Appellant contends that the evidence is factually insufficient on the element of intoxication. The term Aintoxicated@ means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or having an alcohol concentration of 0.08 or more. Id. at ' 49.01(2). Because appellant did not submit to any scientific means of determining his level of alleged intoxication, the State=s theory of prosecution was that he had lost the normal use of his mental or physical faculties as set forth in section 49.01(2)(A). See id. At trial, Deputy Walker testified that he observed appellant speeding in his vehicle and changing lanes without signaling. Deputy Walker observed appellant=s blood-shot eyes and slurred speech. Appellant smelt of alcohol and stumbled as he exited his vehicle. Furthermore, appellant performed poorly on two field sobriety tests. The results of the HGN test indicated that appellant was intoxicated. See Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994) (reasoning that the HGN is a highly reliable indicator of intoxication). Appellant was also unable to walk in a straight line or properly complete the walk-and-turn sobriety test. Deputy Walker=s testimony of appellant=s erratic driving, difficulty in exiting his car, slurred speech, blood-shot eyes, unsteady balance, and smell of alcohol all suggest that appellant=s mental and physical faculties were impaired. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that an officer=s testimony that a person was intoxicated provided sufficient evidence to establish the element of intoxication); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (stating that the testimony of a police officer that an individual is intoxicated is probative evidence of intoxication). We find that the evidence supporting the conviction is not against the great weight and preponderance of the evidence. Appellant attempted to rebut Deputy Walker=s testimony with the testimony of Gary Bradshaw. Bradshaw was a passenger in appellant=s car on the night of the offense. Bradshaw testified that he did not observe appellant drinking alcohol within the four hours preceding appellant=s arrest. The jury is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony of the witnesses. Markey v. State, 996 S.W.2d 226, 230 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The jury in this case was presented with testimony from Bradshaw and Deputy Walker, and it was within the jury=s exclusive province to reconcile the conflicting evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Apparently, the jury chose to believe Deputy Walker=s testimony rather than Bradshaw=s. We find the evidence to be factually sufficient to support appellant=s conviction and overrule appellant=s sole issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgement rendered and Memorandum Opinion filed October 9, 2008 Panel consists of Chief Justice Hedges and Justices Guzman and Brown Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant denies that he made this admission to Deputy Walker. [2] A defendant charged with driving while intoxicated under section 49.04(a) may be tried as a felon if he has two prior convictions for driving while intoxicated. Tex. Penal Code ' 49.09(b)(2). The prior intoxication-related offenses are elements of the offense of felony driving while intoxicated. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).