MEMORANDUM OPINION No. 04-09-00478-CR
Elizabeth GARZA, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No 4, Bexar County, Texas Trial Court No. 956959 Honorable Sarah Garrahan-Moulder, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebecca Simmons, Justice
Delivered and Filed: May 12, 2010
AFFIRMED
Appellant Elizabeth Garza was charged with the misdemeanor offense of driving while
intoxicated (DWI). A jury found her guilty of the offense and the trial court assessed
punishment at 180 days confinement in the Bexar County Jail and a $500 fine. Both the fine and
confinement were probated. Garza appeals her conviction, alleging that the evidence was
factually insufficient to support the DWI conviction. We affirm the judgments of the trial court. 04-09-00478-CR
FACTUAL BACKGROUND
On February 25, 2006, at approximately 3:00 a.m., San Antonio Police Officer Carlos
Bishop was on duty when he saw an accident involving an eighteen-wheeler and a pick-up truck.
Officer Bishop noted that, when he arrived at the scene, the vehicles were still smoking from the
recent impact. Officer Bishop approached the driver’s side window of the pick-up truck, and
observed Garza behind the wheel. When asked if she was okay, Garza indicated that she was not
injured.
Officer Bishop observed that Garza appeared “disoriented, kind of confused,” exhibited
slurred speech, bloodshot and glassy eyes, and her clothes were disorderly and “kind of in a
disarray.” Additionally, Garza had “a strong odor of intoxicants on her breath” and informed
Officer Bishop that she had just come from a local bar. In fact, Officer Bishop noted she was
still wearing a wristband consistent with the type nightclubs use with their patrons. Furthermore,
Garza admitted she had been drinking that evening. After conducting several field sobriety tests,
Officer Bishop determined that Garza had lost the normal use of her mental and physical
faculties and placed Garza under arrest for DWI.
FACTUAL SUFFICIENCY
In her sole issue on appeal, Garza argues the evidence was factually insufficient to
support her conviction. Garza’s father testified that Garza suffered a fractured jaw and produced
pictures, taken the day after the accident, showing visible bruising and swelling. More
specifically, Garza argues her disorientation and behavior are more consistent with the injuries
she sustained as a result of the accident than with intoxication.
-2- 04-09-00478-CR
A. Standard of Review
When considering a factual sufficiency challenge, an appellate court looks at the
evidence in a neutral light giving almost complete deference to the jury’s determinations of
credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if
the evidence supporting the verdict is so weak that the verdict seems clearly wrong and
manifestly unjust or if the evidence supporting the verdict is outweighed by the great weight and
preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.
App. 2006).
B. Driving While Intoxicated
To support a DWI conviction, the evidence must show that Garza drove a motor vehicle
while intoxicated on a public road, street, highway, or alley. TEX. PENAL CODE ANN. § 49.04
(Vernon 2003). Intoxicated means: “(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol, . . . or any other substance into the body; or (B)
having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(A), (B). A person’s failure to
have the normal use of her mental or physical faculties may be proven by circumstantial
evidence. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App. 1973).
C. Evidence of Intoxication
1. Visual Indicators of Intoxication
Officer Bishop testified that when he approached Garza’s vehicle, she appeared
disoriented and confused, stumbled when she exited the vehicle, leaned against her vehicle for
balance, exhibited slurred speech, had red, glassy eyes, smelled strongly of intoxicants, and was
extraordinarily emotional and talkative. Based on his observations, Officer Bishop administered
several field sobriety tests on Garza. See Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim.
-3- 04-09-00478-CR
App. 1985) (enumerating a nonexclusive list of signs recognized as evidence of intoxication,
including odor of alcohol on person or breath, drowsiness, unsteady balance, staggered gait,
slurred speech, and bloodshot eyes). More specifically, Officer Bishop administered the: (1)
walk-and-turn test where Garza exhibited possible clues of intoxication including an inability to
maintain balance, failure to touch heel-to-toe, raising her arms for balance, turning incorrectly,
and beginning before instructed; (2) the one-leg stand test where Garza swayed, used her arms
for balance, hopped, and put her foot down; and (3) the Romberg balance test where Garza
exhibited a circular sway and kept opening her eyes even when instructed to keep them closed.
2. HGN Test
Garza argues that her performance on the HGN test should not be considered for
purposes of factual sufficiency because the officer failed to take into consideration the possibility
of a head injury due to her injuries sustained during the accident. The jury, however, heard
Officer Bishop’s qualifications and experience administering the test and his testimony that when
he administered the HGN test on Garza that she revealed several clues to indicate intoxication,
including lack of smooth pursuit and involuntary jerking of both eyes during two different tests.
3. Refusal to Provide Breath Specimen
After being read the statutory warnings, Garza agreed to provide a breath specimen. Yet,
when the operator instructed Garza to “blow into the machine,” Garza failed to do so; and after
several attempts, Garza ultimately refused to give a breath specimen. “A person’s refusal of a
request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal
was express or the result of an intentional failure to give the specimen, may be introduced into
evidence at the person’s trial.” TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999).
-4- 04-09-00478-CR
Garza argues that her “refusal” to provide a breath specimen was not a refusal, but
instead a physical inability due to her broken jaw. According to Garza, the fact that she had a
fractured jaw from the accident is evidence of her inability to perform the test, not a refusal.
Importantly, however, Officer Bishop testified that on the evening in question, Garza did not
complain of injuries or that she was experiencing pain in her jaw.
4. Admission of Alcohol Consumption
Other evidence of intoxication included Garza’s admission that she had been drinking at
a local bar called Planeta Bar Rio.
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MEMORANDUM OPINION No. 04-09-00478-CR
Elizabeth GARZA, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No 4, Bexar County, Texas Trial Court No. 956959 Honorable Sarah Garrahan-Moulder, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebecca Simmons, Justice
Delivered and Filed: May 12, 2010
AFFIRMED
Appellant Elizabeth Garza was charged with the misdemeanor offense of driving while
intoxicated (DWI). A jury found her guilty of the offense and the trial court assessed
punishment at 180 days confinement in the Bexar County Jail and a $500 fine. Both the fine and
confinement were probated. Garza appeals her conviction, alleging that the evidence was
factually insufficient to support the DWI conviction. We affirm the judgments of the trial court. 04-09-00478-CR
FACTUAL BACKGROUND
On February 25, 2006, at approximately 3:00 a.m., San Antonio Police Officer Carlos
Bishop was on duty when he saw an accident involving an eighteen-wheeler and a pick-up truck.
Officer Bishop noted that, when he arrived at the scene, the vehicles were still smoking from the
recent impact. Officer Bishop approached the driver’s side window of the pick-up truck, and
observed Garza behind the wheel. When asked if she was okay, Garza indicated that she was not
injured.
Officer Bishop observed that Garza appeared “disoriented, kind of confused,” exhibited
slurred speech, bloodshot and glassy eyes, and her clothes were disorderly and “kind of in a
disarray.” Additionally, Garza had “a strong odor of intoxicants on her breath” and informed
Officer Bishop that she had just come from a local bar. In fact, Officer Bishop noted she was
still wearing a wristband consistent with the type nightclubs use with their patrons. Furthermore,
Garza admitted she had been drinking that evening. After conducting several field sobriety tests,
Officer Bishop determined that Garza had lost the normal use of her mental and physical
faculties and placed Garza under arrest for DWI.
FACTUAL SUFFICIENCY
In her sole issue on appeal, Garza argues the evidence was factually insufficient to
support her conviction. Garza’s father testified that Garza suffered a fractured jaw and produced
pictures, taken the day after the accident, showing visible bruising and swelling. More
specifically, Garza argues her disorientation and behavior are more consistent with the injuries
she sustained as a result of the accident than with intoxication.
-2- 04-09-00478-CR
A. Standard of Review
When considering a factual sufficiency challenge, an appellate court looks at the
evidence in a neutral light giving almost complete deference to the jury’s determinations of
credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if
the evidence supporting the verdict is so weak that the verdict seems clearly wrong and
manifestly unjust or if the evidence supporting the verdict is outweighed by the great weight and
preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.
App. 2006).
B. Driving While Intoxicated
To support a DWI conviction, the evidence must show that Garza drove a motor vehicle
while intoxicated on a public road, street, highway, or alley. TEX. PENAL CODE ANN. § 49.04
(Vernon 2003). Intoxicated means: “(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol, . . . or any other substance into the body; or (B)
having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(A), (B). A person’s failure to
have the normal use of her mental or physical faculties may be proven by circumstantial
evidence. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App. 1973).
C. Evidence of Intoxication
1. Visual Indicators of Intoxication
Officer Bishop testified that when he approached Garza’s vehicle, she appeared
disoriented and confused, stumbled when she exited the vehicle, leaned against her vehicle for
balance, exhibited slurred speech, had red, glassy eyes, smelled strongly of intoxicants, and was
extraordinarily emotional and talkative. Based on his observations, Officer Bishop administered
several field sobriety tests on Garza. See Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim.
-3- 04-09-00478-CR
App. 1985) (enumerating a nonexclusive list of signs recognized as evidence of intoxication,
including odor of alcohol on person or breath, drowsiness, unsteady balance, staggered gait,
slurred speech, and bloodshot eyes). More specifically, Officer Bishop administered the: (1)
walk-and-turn test where Garza exhibited possible clues of intoxication including an inability to
maintain balance, failure to touch heel-to-toe, raising her arms for balance, turning incorrectly,
and beginning before instructed; (2) the one-leg stand test where Garza swayed, used her arms
for balance, hopped, and put her foot down; and (3) the Romberg balance test where Garza
exhibited a circular sway and kept opening her eyes even when instructed to keep them closed.
2. HGN Test
Garza argues that her performance on the HGN test should not be considered for
purposes of factual sufficiency because the officer failed to take into consideration the possibility
of a head injury due to her injuries sustained during the accident. The jury, however, heard
Officer Bishop’s qualifications and experience administering the test and his testimony that when
he administered the HGN test on Garza that she revealed several clues to indicate intoxication,
including lack of smooth pursuit and involuntary jerking of both eyes during two different tests.
3. Refusal to Provide Breath Specimen
After being read the statutory warnings, Garza agreed to provide a breath specimen. Yet,
when the operator instructed Garza to “blow into the machine,” Garza failed to do so; and after
several attempts, Garza ultimately refused to give a breath specimen. “A person’s refusal of a
request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal
was express or the result of an intentional failure to give the specimen, may be introduced into
evidence at the person’s trial.” TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999).
-4- 04-09-00478-CR
Garza argues that her “refusal” to provide a breath specimen was not a refusal, but
instead a physical inability due to her broken jaw. According to Garza, the fact that she had a
fractured jaw from the accident is evidence of her inability to perform the test, not a refusal.
Importantly, however, Officer Bishop testified that on the evening in question, Garza did not
complain of injuries or that she was experiencing pain in her jaw.
4. Admission of Alcohol Consumption
Other evidence of intoxication included Garza’s admission that she had been drinking at
a local bar called Planeta Bar Rio. Officer Bishop testified that Garza acknowledged that she
had been drinking, but that “she did not feel intoxicated.” During trial, Garza’s father testified
that when he arrived at the scene of the accident, he also smelled alcohol on her breath and, at
the time, did not believe Garza required medical services before being booked into the county
jail. Garza’s father further testified that Garza acknowledged drinking at least three drinks that
evening. Furthermore, the defense offered Garza’s medical records from University Hospital
which provided that Garza told the nurse that: she “hit a pole with her truck,” she did “not
remember the accident at all,” did not know if she had passed out, “she had been at a club with
friends drinking,” and “she had three hard liquor drinks.”
There is no question that Garza suffered injuries as a result of the accident and, during
her case in chief, she presented evidence regarding the extent of these injuries. Foremost, the
Adult Detention Center refused to accept Garza for booking and instead transferred her to the
hospital. At the hospital, the physician noted a potential head injury and instructed Garza to
follow-up with her personal physician. Finally, Garza’s personal doctor diagnosed a broken jaw
and her father offered pictures showing the extensive bruising and swelling on her face.
-5- 04-09-00478-CR
Based on the record before us, however, we cannot agree that the evidence is so weak
that the verdict is clearly wrong and manifestly unjust. Watson, 204 S.W.3d at 414-15. The
testimony of Officer Bishop, outlined above, regarding his opinion that Garza was intoxicated is
sufficient to establish intoxication. See Little v. State, 853 S.W.2d 179, 183 (Tex. App.—Corpus
Christi 1993, no pet.). Given this evidence, we conclude that the evidence of Garza’s
intoxication is not so weak as to make the verdict seem clearly wrong or manifestly unjust. See
Mills v. State, 99 S.W.3d 200, 204 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding evidence
factually sufficient when defendant’s breath smelled like alcohol, his eyes were red and glassy,
his posture unsteady, he failed sobriety tests, he personally admitted to drinking, and refused to
give breath sample).
Likewise, we disagree that the verdict is against the great weight and preponderance of
the evidence. Watson, 204 S.W.3d at 414-15. During trial, Garza’s counsel presented evidence
and extensively cross-examined Officer Bishop regarding Garza’s actions being more consistent
with injuries as opposed to intoxication. To the extent the evidence could be viewed as
conflicting, an appellate court must give due deference to the jury with regard to issues of
credibility and to weight-of-the-evidence determinations. See Marshall v. State, 210 S.W.3d
618, 625 (Tex. Crim. App. 2006). Although Garza argues that Officer Bishop’s testimony was
so “vague and inconsistent” that it rendered his testimony “entirely without credibility,” the jury
is the “exclusive judge of the credibility of witnesses and of the weight to be given their
testimony.” Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). As such, the jury was
free to believe or disbelieve Officer Bishop’s testimony. Based on the record before us and
considering the evidence cited by Garza, the jury in this case was in the best position to reconcile
-6- 04-09-00478-CR
any perceived conflicts and to weigh the evidence, and we give proper deference to those
determinations. See id.
CONCLUSION
Accordingly, after viewing all of the evidence in a neutral light, we cannot conclude that
the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict
is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414.
Accordingly, the evidence is factually sufficient to support Garza’s conviction and we overrule
Garza’s sole issue on appeal.
Rebecca Simmons, Justice
DO NOT PUBLISH
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