Manuel Becerra-Campos v. State

Affirmed and Memorandum Opinion filed June 25, 2009 Affirmed and Memorandum Opinion filed June 25, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00722-CR ____________ MANUEL BECERRA-CAMPOS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 1 Smith County, Texas Trial Court Cause No. 001-83387-07 M E M O R A N D U M   O P I N I O N Appellant Manuel Becerra-Campos challenges his conviction following a bench trial for misdemeanor driving while intoxicated (DWI). The trial court assessed punishment at confinement for 180 days and a $500 fine. Appellant=s sentence was suspended by the trial court except for $200 of the $500 fine, and appellant was placed on community supervision for 20 months. Appellant contends that the evidence was legally and factually insufficient to support the trial court=s finding of intoxication. We affirm. Background At approximately 1:00 a.m. on April 29, 2007, Texas Highway Patrol Trooper Michael Bortz was monitoring traffic in Tyler with a radar gun when he noticed a red truck traveling at 62 miles per hour in a 50-mile-per-hour speed zone. Trooper Bortz stopped the truck for speeding. Trooper Bortz identified appellant in open court as the driver of the truck in question. Upon making contact with appellant after stopping the truck, Officer Bortz immediately noticed a strong and distinct odor of alcohol on appellant=s breath, and that appellant had glassy, bloodshot eyes. Trooper Bortz found two open beer cans with some beer still in them on the floorboard of appellant=s truck. During his conversation with appellant, Trooper Bortz noticed that English was not appellant=s first language. Because no other officers who spoke Spanish were available at the time and Trooper Bortz concluded that appellant was able to understand him sufficiently, Trooper Bortz continued his investigation. After directing appellant and his passenger to exit the truck, Trooper Bortz asked appellant if he had been drinking alcohol. Appellant initially denied drinking that evening but eventually admitted drinking Aa couple of beers@ at a local club earlier in the night. Trooper Bortz then administered three standardized field sobriety tests to appellant: (1) the horizontal gaze nystagmus (HGN) test; (2) the walk-and-turn test; and (3) the one-leg stand test. Appellant=s performance on each test and the totality of the circumstances led Trooper Bortz to form the opinion that appellant was intoxicated. Trooper Bortz arrested appellant. Trooper Bortz then questioned appellant=s passenger, who had no noticeable odor of alcohol on his breath and who denied having had any alcohol that evening. Based on his investigation, Trooper Bortz concluded that the two partially full beer cans in the truck belonged to appellant. After releasing appellant=s truck into the custody of appellant=s passenger, Trooper Bortz transported appellant to jail. Trooper Bortz read appellant the required statutory DWI warnings in English and gave appellant a copy of the warnings printed in Spanish. Trooper Bortz asked appellant to take a breathalyzer test but appellant declined to do so. At trial, Trooper Bortz testified to the above facts and added that appellant swayed, staggered, and was unsteady on his feet, and had slurred, thick-tongued speech. Trooper Bortz further testified that his patrol car was equipped with a video camera that recorded his traffic stop of appellant on April 29, 2007. The State offered this video into evidence and published it to the trial court. Trooper Bortz testified that the video was a fair and accurate representation of his encounter with appellant on April 29, 2007. On the video, appellant referred to his boots as being Atoo big.@ Trooper Bortz testified that, in his opinion, the boots should not have precluded appellant from performing the walk-and-turn test properly. Trooper Bortz testified that appellant=s swaying, unsteadiness, and glassy, bloodshot eyes were not apparent in the video. Trooper Bortz also testified that his opinion that appellant was intoxicated when he stopped appellant did not change after watching the video of the April 29 stop. Trooper Bortz testified that nearly two months transpired between stopping appellant and completing his offense report of the stop, and that he was not A100 percent certain@ that he found both open containers of beer on appellant=s side of the truck. Trooper Bortz also testified that appellant pulled over safely once Trooper Bortz signaled for him to stop, and that appellant had been driving safely except for speeding. Trooper Bortz admitted during cross-examination that he failed to properly instruct appellant how to perform the walk-and-turn and one-leg stand tests, and that the results of those two tests therefore were invalidated. Trooper Bortz further testified that he did not ask appellant if he had suffered a concussion or other type of brain injury prior to administering the HGN test, and that such a question is required according to his training. Appellant offered no evidence in his defense. The trial court found appellant guilty of misdemeanor DWI as charged in the information and signed its judgment on July 7, 2008, imposing a sentence of confinement for 180 days and a $500 fine. Appellant=s sentence was suspended by the trial court except for $200 of the $500 fine, and appellant was placed on community supervision for 20 months. Appellant appeals from this judgment. Analysis Appellant challenges both the legal and factual sufficiency of the evidence to support the trial court=s finding that he was intoxicated. Appellant does not challenge the trial court=s findings regarding the other elements of the offense charged. I. Legal Sufficiency The offense of misdemeanor driving while intoxicated contains three elements: (1) operation of a motor vehicle; (2) while intoxicated; (3) in a public place. See Tex. Penal Code Ann. _ 49.04(a), (b) (Vernon 2003). AIntoxicated@ is defined as Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body.@ Id. _ 49.01(2)(A) (Vernon 2003). Appellant challenges only the trial court=s finding regarding the element of intoxication. In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The court does not sit as a juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc). The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume C even if not obvious from the record C that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U.S. at 326. The opinion testimony of the arresting officer alone is legally sufficient to support a finding of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Crawford v. State, 643 S.W.2d 178, 180 (Tex. App.CTyler 1982, no pet.). A defendant=s refusal to take a breathalyzer test may be considered by the fact finder as evidence of intoxication. Bartlett v. State, 270 S.W.3d 147, 149 (Tex. Crim. App. 2008). Trooper Bortz testified to the following at trial: (1) appellant was driving 12 miles per hour over the speed limit when Trooper Bortz initiated the traffic stop; (2) there was a distinct odor of alcohol on appellant=s breath; (3) appellant had glassy, bloodshot eyes; (4) appellant admitted to drinking Aa couple of beers@ earlier in the evening; (5) Trooper Bortz found two open beer cans on the floorboard of appellant=s truck; (6) appellant=s performance on all three field sobriety tests strongly indicated that appellant was intoxicated; (7) appellant swayed, staggered, and was unsteady on his feet; (8) appellant had slurred, thick-tongued speech; (9) appellant declined to take a breathalyzer test; and (10) it was Trooper Bortz=s opinion that appellant was intoxicated. Even ignoring the results of the improperly administered field sobriety tests, a rational fact finder viewing this evidence in the light most favorable to the State could have found beyond a reasonable doubt that appellant was intoxicated. See Jackson, 443 U.S. at 319; Dewberry, 4 S.W.3d at 740. We overrule appellant=s issue regarding legal sufficiency of the evidence to support the trial court=s finding that appellant was intoxicated. II. Factual Sufficiency When conducting a factual sufficiency review, an appellate court must determine whether (1) the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005). We view the evidence in a neutral light in a factual sufficiency review. Id. In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the fact finder=s verdict. See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008). An appellate court should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The fact finder may choose to believe some, all, or none of a witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc); State v. Dudley, 223 S.W.3d 717, 725 (Tex. App.CTyler 2007, no pet.). Due deference must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). In cases based upon circumstantial evidence, it is not required that all facts point to a defendant=s guilt; it is sufficient if the combined and cumulative force of all of the incriminating circumstances warrants the conclusion of guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Appellant highlights the following evidence in support of his contention that the evidence was factually insufficient to support the trial court=s finding of intoxication: (1) the glassy, bloodshot eyes and swaying, staggering, and unsteadiness about which Trooper Bortz testified were not apparent in the video of the April 29, 2007 traffic stop; (2) Trooper Bortz testified that he could not be A100 percent certain@ that he found both open beer cans on appellant=s side of the truck; (3) Trooper Bortz failed to ask appellant if he had suffered a concussion or any other type of brain injury when administering the HGN test;[1] (4) Trooper Bortz admitted during cross-examination that the results of the one-leg stand and walk-and-turn tests had been invalidated by his improper instructions; and (5) Trooper Bortz testified that appellant pulled over promptly and safely when signaled to do so, and had been driving safely except for speeding. Appellant also asserts that Trooper Bortz=s remaining testimony must be called into question because of (1) the nearly two-month interval between the traffic stop and completion of the offense report; (2) Trooper Bortz=s failure to administer the field sobriety tests in accordance with his training; and (3) asserted inconsistencies and contradictions between Trooper Bortz=s testimony and the video of the traffic stop.[2] However, even if we were to ignore the results of the improperly administered field sobriety tests, the record still contains ample evidence supporting the trial court=s finding that appellant was intoxicated. In Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (en banc), the Court of Criminal Appeals listed six non-exclusive, non-mandatory indicators of intoxication: (1) slurred speech; (2) bloodshot eyes; (3) unsteady balance; (4) staggered gait; (5) odor of alcohol on breath; and (6) odor of alcohol on person. Trooper Bortz testified to observing five of these indicators when he stopped appellant. See id. Trooper Bortz also testified that appellant admitted to drinking Aa couple of beers@ earlier in the evening. Trooper Bortz found two open beer cans on the floorboard of appellant=s truck. Appellant declined to take a breathalyzer test, which the trial court may view as evidence that appellant was intoxicated. See Bartlett, 270 S.W.3d at 149. The trial court was free to believe as much of Trooper Bortz=s testimony as it chose. See Sharp, 707 S.W.2d at 614; Dudley, 223 S.W.3d at 725. Viewing the evidence in this case in a neutral light, we conclude that it is factually sufficient to support the trial court=s finding that appellant was intoxicated. See Prible, 175 S.W.3d at 730-31. The trial court=s finding is neither clearly wrong nor manifestly unjust. See Lancon, 253 S.W.3d at 706-07; Prible, 175 S.W.3d at 730-31; Martinez, 129 S.W.3d at 106. We overrule appellant=s issue regarding factual sufficiency of the evidence to support the trial court=s finding that appellant was intoxicated. Conclusion The trial court=s judgment is affirmed. /s/ William J. Boyce Justice Panel consists of Justice Anderson, and Justices Guzman and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). 1 Appellant relies on Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994) (en banc), to support his contention that the results of the HGN test were wholly invalidated by Trooper Bortz=s failure to ask appellant about previous head injuries. Appellant misplaces his reliance on Emerson, however, because the question before the Court of Criminal Appeals in that case was whether the HGN technique designed and promoted by the National Highway Traffic Safety Administration (NHTSA) was reliable for purposes of admissibility of expert testimony under Texas Rule of Evidence 702; the Court did not hold that failure to adhere to NHTSA standards invalidated the test results. See id. at 768-69. 2 In addition to the asserted inconsistencies and contradictions already described above, appellant also highlights the following: (1) Officer Bortz testified to his belief that appellant could understand his instructions well enough to allow for use of the field sobriety tests, but then explained that he misunderstood appellant=s complaints about his boots being too big to perform the walk-and-turn test properly; and (2) Trooper Bortz initially testified that he had emptied out the two beer cans he found in appellant=s truck and threw them in the truck bed, but later testified that he threw one of the cans to the ground toward the back of the truck as shown on the video of the April 29, 2007 traffic stop.