Barrios, Elmer Isreal v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2004
• Docket: 14-03-00564-CR
• Status: Published

Opinion

Affirmed as Reformed and Memorandum Opinion filed September 30, 2004

Affirmed as Reformed and Memorandum Opinion filed September 30, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00564-CR

ELMER ISRAEL BARRIOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 40,826

M E M O R A N D U M   O P I N I O N

Appellant Elmer Israel Barrios was found guilty of the offenses of felony driving while intoxicated and intoxication assault, and the trial court sentenced him to ten years’ confinement for each offense in the Texas Department of Criminal Justice.  In five points of error, appellant claims that the evidence is legally and factually insufficient to sustain his convictions and that the trial court erred in failing to enter a judgment of acquittal with regard to a charge for which he was acquitted.  We reform the judgment and affirm as modified.

BACKGROUND

On December 3, 2000, appellant, a 27‑year‑old Hispanic man, and Asiano Garcia, Jr., a 43‑year‑old Hispanic man, were involved in a traffic accident while driving to Houston, Texas.  Appellant ran a stop sign at a highway intersection and collided with a Honda Accord.  The occupants of both vehicles suffered injuries because of the collision. 

SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence is both legally and factually insufficient to support his convictions.  In evaluating a legal‑sufficiency claim attacking a jury's finding of guilt, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  In our review, we accord great deference “‘to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. 

In conducting a factual‑sufficiency review of the jury’s determination, we do not view the evidence “in the light most favorable to the prosecution.”  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539‑02, 2004 WL 840786, at *7, ___ S.W.3d ___, ___ (Tex. Crim. App. Apr. 21, 2004).  We may find the verdict is factually insufficient in two ways.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met.  Id.  We must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact‑finder.  Zuniga, 2004 WL 840786, at *4.  Our evaluation should not intrude upon the fact‑finder’s role as the sole judge of the weight and credibility given to any witness’s testimony.  Cain, 958 S.W.2d at 407.

A.  Driving While Intoxicated

In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for driving while intoxicated.  Appellant claims that there is insufficient evidence (1) that he was the driver of the truck involved in the accident and (2) that he was intoxicated.

To sustain a conviction for driving while intoxicated, the State must prove beyond a reasonable doubt that appellant: (1) operated a motor vehicle, (2) in a public place, (3) while intoxicated.  Tex. Pen. Code Ann. § 49.04(a) (Vernon 1994).  Intoxication means: (1) not having the normal use of mental or physical faculties by reason of introduction of alcohol into the body or (2) having an alcohol concentration of 0.08 or more.  Tex. Pen. Code Ann. § 49.01(2) (Vernon Supp. 2003). 

Through testimony, appellant was identified as the driver of the vehicle.  Asiano Chano Garcia, Jr. testified that he was the passenger in appellant’s truck at the time of the accident.   He identified appellant as the driver of the truck.  John Rogers, a witness at the scene of the accident, said the younger Hispanic male was the driver of the truck.  Rogers saw the driver of the truck kick out the driver’s side window, climb out of the truck, and stand next to the vehicle after the accident.  The older Hispanic male remained in the passenger’s seat.  The younger Hispanic male was taken to the hospital.  However, before being transported, medical personnel removed an identification card from the man’s clothing and gave it to an officer at the scene. The identification card was that of Elmer Barrios.  Thus, there is evidence that supports a finding that appellant was the operator of the truck involved in the accident.

We now turn to the jury’s finding that appellant was intoxicated at the time of the accident.  The State presented evidence under both methods of proving intoxication.  First, Officer Darin Holland of the Alvin Police testified that, at the scene of the accident, the younger Hispanic male was disoriented.  The man smelled of alcohol, and his eyes were glassy and bloodshot.  Officer Holland said, in his opinion, the man had lost the use of his mental and physical faculties.  Moreover, Garcia, appellant’s passenger, admitted that he and appellant had been drinking beer prior to the accident.  In fact, several unopened beer cans were inside the truck.

Furthermore, the State introduced evidence to show appellant’s blood plasma alcohol content was 0.330.  When converted, appellant’s whole blood alcohol content level was 0.280, well over the legal limit of 0.08.  Appellant claims, however, this evidence does not support his conviction because the records introduced at trial, to which he made no objection, were not his but those of another patient named Elmer Barraoe.  Appellant’s name is Elmer Israel Barrios.  A hospital employee testified that the hospital places a name on the patient’s file when the patient is admitted.  If a patient can give the hospital staff his name, then that name is the one put on the file.  If the patient is unable to give a name due to his condition, the hospital gives the patient a code name until his name can be established.  A review of the records for “Elmer Barraoe” shows that a code name was not used for this patient, which means the patient gave the hospital staff a name upon admission.  With no identification on him (because it had been taken from him at the scene), the hospital’s only source of information about the patient’s name came from the patient.  Further, although the name entered into the computer system is “Elmar Barraoe,” notes made by different hospital personnel who saw the patient show the man also identified himself as “Isreal Barrios.”  Given the evidence, the jury could have determined that the medical records were the appellant’s and that the discrepancy of the name on the medical records was either due to a misspelling by the hospital staff or the giving of an incorrect name by appellant.

Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of driving while intoxicated.  Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt.  The evidence is therefore legally and factually sufficient to support the verdict.  We overrule appellant’s first and second points of error.

B.  Intoxication Assault

In this third and fourth points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for intoxication assault.  For the jury to find appellant guilty of intoxication assault, the State must prove that (1) appellant operated a motor vehicle while intoxicated, (2) in a public place, (3) causing serious bodily injury, (4) by reason of that intoxication.  Tex. Pen. Code Ann. § 49.07 (Vernon 1999).

Here, appellant relies on the same arguments he did to challenge his conviction for driving while intoxicated.  Again, he contends that there is insufficient evidence to prove that he was the driver of the vehicle and that he was intoxicated.  Having already found these arguments do not undermine the jury’s verdict, we find the evidence is legally and factually sufficient to support appellant’s conviction for intoxication assault.  We overrule appellant’s third and fourth points of error.

REFORMATION OF JUDGMENT

In his fifth point of error, appellant argues the judgment is inaccurate because it does not fully reflect the jury’s verdict.  The State does not dispute this point.  Appellant was charged with three counts in the indictment.  The jury convicted appellant of the first two counts but acquitted him of the third count.  The trial court failed to address count three in the judgment.  When a court of appeals has the necessary data and evidence before it for reformation, an erroneous judgment may be reformed on appeal.  Storr v. State, 126 S.W.3d 647, 654–55 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).  Accordingly, we sustain appellant’s fifth point of error and modify the trial court’s judgment to reflect that appellant was acquitted of the third count in the indictment.

CONCLUSION

We reform the trial court’s judgment to reflect that appellant was acquitted on count three of the indictment.  We affirm the remainder of the trial court’s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed September 30, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish — Tex. R. App. P. 47.2(b).