AFFIRMED and Opinion Filed May 24, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01143-CR
APRIL MICHELLE FLOYD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Rockwall County, Texas Trial Court Cause No. CR18-0971
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek Following a bench trial, April Michelle Floyd was convicted of misdemeanor
driving while intoxicated. The trial court assessed punishment at sixty days in
county jail and a $500 fine, suspended the jail sentence, and placed her on
community supervision for twenty-one months. In her sole issue, appellant
challenges the sufficiency of the evidence to support her conviction. We affirm.
FACTUAL BACKGROUND
Rockwall police officer Cameron Parker was on patrol at about 12:30 a.m. on
April 21, 2018 when he noticed a vehicle weaving in and out of its lane of traffic. 1 Parker said the vehicle nearly hit the median, was failing to maintain a consistent
speed, and was braking at inappropriate times. Given the “inconsistent driving
behavior,” the time of night, and the location, which was in the area of a bar where
he often saw intoxicated drivers at “around that time,” Parker believed the driver of
the vehicle was intoxicated and initiated a stop.
Parker approached the vehicle, which was being driven by appellant. He
smelled the odor of alcohol, which followed her when she exited the vehicle, and he
noticed appellant’s eye makeup was smeared. Parker asked her if she had been
drinking and, appellant said she had, ultimately acknowledging that she had one to
two glasses of wine at a party and two mixed drinks at the nearby bar. She also told
him she ate earlier in the evening. Over the course of the stop, appellant made
several statements that Parker believed indicated appellant knew she was
intoxicated. For example, she said she was “in trouble,” “this is bad,” was “upset”
with herself, and was “worried” about the possibility of going to jail.
Parker decided to evaluate her by administering three standard field sobriety
tests––the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg
stand. The tests, he said, are validated and standardized by the National Highway
Traffic Safety Administration (NHTSA). Their purpose is to detect whether a person
is intoxicated, and the tests are scored on the basis of the various “clues” observed.
Parker said he had performed more than 150 of these tests either in training or in the
–2– field. As he testified about the tests and appellant’s performance on them, the State
played a video recording of the scene.
Parker began with the HGN test. At trial, he explained the test, how he
administered it, and the particular clues he looked for in appellant. Parker said he
observed all six clues of intoxication in appellant’s eyes.
Parker next attempted to administer the walk-and-turn test, which requires a
person to walk heel to toe down a line with their arms down by their side, negotiate
a turn, and walk back. But, Parker said, appellant got in the starting position
numerous times but then appeared to be off balance and had to “catch herself by
stepping off to the side.” Parker said it took twenty-five to thirty minutes for
appellant to start the test, which was the longest amount of time in his career. During
this time, appellant repeatedly asked for the instructions to perform the test, which
he believed indicated a loss of her mental faculties. She also told the officer she
needed to urinate and thought that would impact her ability to perform the test.
Parker said there was no public restroom around and denied appellant’s request to
relieve herself behind the car. Ultimately, appellant urinated on herself and, then,
afterwards performed the test. She also complained that her feet were cold, but
Parker said it was appellant’s decision to remove her shoes. Parker said he observed
five of the eight clues, which, like the HGN test, indicated intoxication. The final
test was the one-leg stand, which had four clues. Parker said appellant exhibited two
of the clues, which was enough to indicate intoxication.
–3– Parker testified that appellant said she had been drunk only once in her life.
He said that, based on his training and experience, people who have less experience
drinking have lower tolerance levels for alcohol. Parker said a lower tolerance level
can affect a person’s mental and physical capacities at lower quantities of alcohol
than an experienced drinker.
Based on appellant’s driving behavior, odor of alcohol, admission of drinking,
and the results on the field sobriety tests, Parker arrested her. Appellant agreed to
take an alcohol breath test, which was administered at the jail. She gave breath
samples at 2:03 a.m. and 2:06 a.m., which showed readings of .076 and .075,
respectively, both under the legal limit of .08.
On cross examination, Parker agreed that (1) although appellant weaved while
driving, she got back into her lane, (2) she stopped at the red light, (3) she pulled
over safely and properly once he initiated the stop, (4) she gave him her license when
asked, and not a debit card or other item, and (5) she recalled specific details of her
night. He also acknowledged that appellant’s need to relieve herself could possibly
affect the walk-and-turn test and agreed that it would have been embarrassing for
appellant to have urinated in front of two male police officers. But he explained that
had she performed the test when instructed, instead of causing a half-hour delay, she
would have most likely been in a place where she could have relieved herself,
whether that was jail or home. Moreover, he also acknowledged that she never
refused to take the tests, but he said she “swayed,” was “unsteady” on her feet.” He
–4– did not believe the “windy” weather affected her balance. As for the one-leg stand,
he acknowledged appellant was standing barefoot in her urine while performing the
test. Although the NHTSA manual requires the one-leg test to be performed on a
dry, level, and non-slippery surface, Parker said he did not instruct appellant to step
out of her urine. He also acknowledged that his partner had to “chime in” with the
proper instructions when appellant failed to tell her to look at her toes and keep her
foot parallel. When defense counsel asked if appellant spoke clearly that night in
connection with the tests, Parker said she spoke with a “thick tongue.”
In addition to Parker’s testimony, the State offered the dash and body camera
recordings of the stop, which generally corroborated Parker’s testimony of the events
that night. The recordings showed appellant’s driving performance which led to the
stop as well as appellant’s demeanor at the scene and her performance on the field
sobriety tests, and, in particular, the nearly thirty-minute delay in appellant starting
the walk-and-turn test.
DISCUSSION
In her sole issue, appellant complains that the evidence is insufficient to prove
beyond a reasonable doubt that she was intoxicated.
In reviewing a challenge to the sufficiency of the evidence, we consider all
the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, any rational trier of fact could
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AFFIRMED and Opinion Filed May 24, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01143-CR
APRIL MICHELLE FLOYD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Rockwall County, Texas Trial Court Cause No. CR18-0971
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek Following a bench trial, April Michelle Floyd was convicted of misdemeanor
driving while intoxicated. The trial court assessed punishment at sixty days in
county jail and a $500 fine, suspended the jail sentence, and placed her on
community supervision for twenty-one months. In her sole issue, appellant
challenges the sufficiency of the evidence to support her conviction. We affirm.
FACTUAL BACKGROUND
Rockwall police officer Cameron Parker was on patrol at about 12:30 a.m. on
April 21, 2018 when he noticed a vehicle weaving in and out of its lane of traffic. 1 Parker said the vehicle nearly hit the median, was failing to maintain a consistent
speed, and was braking at inappropriate times. Given the “inconsistent driving
behavior,” the time of night, and the location, which was in the area of a bar where
he often saw intoxicated drivers at “around that time,” Parker believed the driver of
the vehicle was intoxicated and initiated a stop.
Parker approached the vehicle, which was being driven by appellant. He
smelled the odor of alcohol, which followed her when she exited the vehicle, and he
noticed appellant’s eye makeup was smeared. Parker asked her if she had been
drinking and, appellant said she had, ultimately acknowledging that she had one to
two glasses of wine at a party and two mixed drinks at the nearby bar. She also told
him she ate earlier in the evening. Over the course of the stop, appellant made
several statements that Parker believed indicated appellant knew she was
intoxicated. For example, she said she was “in trouble,” “this is bad,” was “upset”
with herself, and was “worried” about the possibility of going to jail.
Parker decided to evaluate her by administering three standard field sobriety
tests––the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg
stand. The tests, he said, are validated and standardized by the National Highway
Traffic Safety Administration (NHTSA). Their purpose is to detect whether a person
is intoxicated, and the tests are scored on the basis of the various “clues” observed.
Parker said he had performed more than 150 of these tests either in training or in the
–2– field. As he testified about the tests and appellant’s performance on them, the State
played a video recording of the scene.
Parker began with the HGN test. At trial, he explained the test, how he
administered it, and the particular clues he looked for in appellant. Parker said he
observed all six clues of intoxication in appellant’s eyes.
Parker next attempted to administer the walk-and-turn test, which requires a
person to walk heel to toe down a line with their arms down by their side, negotiate
a turn, and walk back. But, Parker said, appellant got in the starting position
numerous times but then appeared to be off balance and had to “catch herself by
stepping off to the side.” Parker said it took twenty-five to thirty minutes for
appellant to start the test, which was the longest amount of time in his career. During
this time, appellant repeatedly asked for the instructions to perform the test, which
he believed indicated a loss of her mental faculties. She also told the officer she
needed to urinate and thought that would impact her ability to perform the test.
Parker said there was no public restroom around and denied appellant’s request to
relieve herself behind the car. Ultimately, appellant urinated on herself and, then,
afterwards performed the test. She also complained that her feet were cold, but
Parker said it was appellant’s decision to remove her shoes. Parker said he observed
five of the eight clues, which, like the HGN test, indicated intoxication. The final
test was the one-leg stand, which had four clues. Parker said appellant exhibited two
of the clues, which was enough to indicate intoxication.
–3– Parker testified that appellant said she had been drunk only once in her life.
He said that, based on his training and experience, people who have less experience
drinking have lower tolerance levels for alcohol. Parker said a lower tolerance level
can affect a person’s mental and physical capacities at lower quantities of alcohol
than an experienced drinker.
Based on appellant’s driving behavior, odor of alcohol, admission of drinking,
and the results on the field sobriety tests, Parker arrested her. Appellant agreed to
take an alcohol breath test, which was administered at the jail. She gave breath
samples at 2:03 a.m. and 2:06 a.m., which showed readings of .076 and .075,
respectively, both under the legal limit of .08.
On cross examination, Parker agreed that (1) although appellant weaved while
driving, she got back into her lane, (2) she stopped at the red light, (3) she pulled
over safely and properly once he initiated the stop, (4) she gave him her license when
asked, and not a debit card or other item, and (5) she recalled specific details of her
night. He also acknowledged that appellant’s need to relieve herself could possibly
affect the walk-and-turn test and agreed that it would have been embarrassing for
appellant to have urinated in front of two male police officers. But he explained that
had she performed the test when instructed, instead of causing a half-hour delay, she
would have most likely been in a place where she could have relieved herself,
whether that was jail or home. Moreover, he also acknowledged that she never
refused to take the tests, but he said she “swayed,” was “unsteady” on her feet.” He
–4– did not believe the “windy” weather affected her balance. As for the one-leg stand,
he acknowledged appellant was standing barefoot in her urine while performing the
test. Although the NHTSA manual requires the one-leg test to be performed on a
dry, level, and non-slippery surface, Parker said he did not instruct appellant to step
out of her urine. He also acknowledged that his partner had to “chime in” with the
proper instructions when appellant failed to tell her to look at her toes and keep her
foot parallel. When defense counsel asked if appellant spoke clearly that night in
connection with the tests, Parker said she spoke with a “thick tongue.”
In addition to Parker’s testimony, the State offered the dash and body camera
recordings of the stop, which generally corroborated Parker’s testimony of the events
that night. The recordings showed appellant’s driving performance which led to the
stop as well as appellant’s demeanor at the scene and her performance on the field
sobriety tests, and, in particular, the nearly thirty-minute delay in appellant starting
the walk-and-turn test.
DISCUSSION
In her sole issue, appellant complains that the evidence is insufficient to prove
beyond a reasonable doubt that she was intoxicated.
In reviewing a challenge to the sufficiency of the evidence, we consider all
the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
–5– v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). This standard accounts for the factfinder's duty to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic
to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
may not re-evaluate the weight and credibility of the record evidence and thereby
substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007). However, we must ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime that was
charged. Id.
A person commits an offense if the person is intoxicated while operating a
motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a); Crouse v. State,
441 S.W.3d 508, 513 (Tex. App.—Dallas 2014, no pet.). Intoxicated is defined as
(1) 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 (2) having an alcohol concentration of 0.08 or more. See TEX. PENAL CODE ANN.
§ 49.01(2)(A)–(B); Crouse, 441 S.W.3d at 513. Thus, section 49.01(2) provides two
alternative methods for the State to prove intoxication. These are referred to as the
impairment theory (loss of normal use of physical or mental faculties) or the per se
theory (alcohol concentration of .08 or more). Crouse, 441 S.W.3d at 513.
–6– In this case, the complaint alleged both theories of intoxication, and appellant
argues the evidence was insufficient under either theory. For purposes of our
analysis, we focus on the impairment theory. Under this theory, appellant’s
complaint focuses on the field sobriety tests. She argues the tests were not
administered in a manner consistent with the NHTSA manual and, as a result, are
invalid, making them unreliable as proof of intoxication. To show these deviations,
she directs us to the NHTSA manual, which is attached to her brief, and asks that we
take judicial notice of it. Appellant did not offer the manual as evidence at trial nor
did she ask the trial court to take judicial notice of it.
Initially, we note that slight variations in the administration of field sobriety
tests do not render evidence inadmissible or unreliable but may affect the weight to
be given the testimony. See Williams v. State, 525 S.W.3d 316, 324 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d); Hartman v. State, 198 S.W.3d 829, 839 (Tex.
App.—Corpus Christie 2006, pet. stricken); Compton v. State, 120 S.W.3d 375, 378
(Tex. App.—Texarkana 2003, pet. ref’d). Even so, we need not decide whether to
take judicial notice of the manual or whether Parker deviated from its instructions in
administering the tests because, even if we exclude the field sobriety tests from our
review, the remaining evidence is sufficient to support a finding of intoxication
beyond a reasonable doubt.
Evidence of intoxication may include, among other things, erratic driving,
unsteady balance, slurred speech, odor of alcohol from the vehicle, odor of alcohol
–7– on the person, admission to recent alcohol consumption, inability to perform field
sobriety tests or follow directions, and an officer’s opinion testimony that the subject
was intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010);
Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985); Zill v. State, 355
S.W.3d 778, 785 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Garcia, No. 13-
18-00373-CR, 2020 WL 1858285, at *3 (Tex. App.—Corpus Christi–Edinburg Apr.
9, 2020, pet. ref’d) (mem. op.) (not designated for publication); Petroski v. State,
No. 14-09-00153-CR, 2010 WL 772050, at *3 (Tex. App.—Houston [14th Dist.]
Mar. 9, 2010, pet. dism’d) (mem. op.) (not designated for publication).
Here, the evidence showed appellant was driving erratically that night,
weaving in and out of her lane, nearly striking a median, and slowing down and
speeding up. When Parker stopped her, he smelled alcohol coming from the vehicle,
and that smell followed appellant. She admitted that she had one to two glasses of
wine earlier at a party and then two mixed drinks at the nearby bar. During the field
sobriety tests, she struggled to understand the instructions and asked him to repeat
them many times, an indication that she did not have normal use of her mental
faculties. The walk-and-turn test, in particular, was delayed by thirty minutes as
appellant unsuccessfully started the test numerous times, repeatedly asked for the
instructions, and attempted to negotiate with the officer regarding her ability to do
perform test. Appellant told the officers she was concerned she could not perform
the test successfully because needed to urinate and ultimately she did urinate on
–8– herself. Over the course of the stop, appellant became emotional and also made
statements that she was “in trouble,” “this is bad,” and was worried about the
possibility of going to jail, all of which suggested to Parker that she knew she was
intoxicated. In addition, Parker said was unsteady and thick-tongued. Finally, there
was evidence that appellant had only been drunk once in her life, and, as a less
experienced drinker, her tolerance level would have been lower and would have
affected her mental and physical faculties at lower quantities than an experienced
drinker. Apart from Parker’s testimony, the trial court had video recordings of the
scene from which he could observe appellant.
Having reviewed the evidence, we conclude it is sufficient for the trial court
to determine beyond a reasonable doubt that appellant had lost the normal use of her
physical or mental faculties due to the introduction of alcohol into her body.
Accordingly, the evidence is sufficient to support her conviction. We overrule the
sole issue.
We affirm the trial court’s judgment.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 191143F.U05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
APRIL MICHELLE FLOYD, On Appeal from the County Court at Appellant Law No. 1, Rockwall County, Texas Trial Court Cause No. CR18-0971. No. 05-19-01143-CR V. Opinion delivered by Justice Reichek; Justices Molberg and THE STATE OF TEXAS, Appellee Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 24, 2022
–10–