Lewis v. State

708 S.W.2d 561, 1986 Tex. App. LEXIS 12615

• Court: Court of Appeals of Texas
• Decided: April 10, 1986
• Docket: No. 01-85-0765-CR
• Status: Published

Opinions

OPINION

DUNN, Justice.

Appellant waived a jury and was convicted by the court of driving while intoxicated. The court assessed punishment at 90 days confinement, probated for two years, and a $250 fine.

In one ground of error, appellant contends that the evidence was insufficient to prove that he was intoxicated “by reason of the introduction of a combination of marijuana and alcohol into his body” as alleged in the information. Appellant relies on a stipulation that the intoxilyzer test record showed a .00 reading and was able to take an accurate reading of appellant’s breath at the time the test was conducted. The State responds that the stipulation was not properly admitted.

The relevant question in reviewing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984).

The information alleged in pertinent part that appellant did

while intoxicated, namely, not having the normal use of his mental and physical faculties by reason of the introduction of a combination of marijuana and alcohol into his body, drive and operate a motor vehicle in a public place.

After the arresting officer observed appellant’s truck swerve on a public road and hit the right curb twice in a distance of 10 blocks, he stopped appellant. The officer testified that appellant was unsteady on his feet, that he was weaving and swaying, that he could not touch his nose when asked, and that he smelled faintly of alcohol. The officer concluded that appellant was intoxicated. Appellant testified that he had one puff of a marijuana cigarette at 6:00 p.m. that day and that he drank two beers between 6:00 p.m. and 10:00 p.m. before his arrest at “around 10:30 p.m.” A videotape taken of appellant shortly after his arrest was also in evidence.

Assuming that the intoxilyzer reading of .00, taken after appellant’s arrest, was in evidence and that the intoxilyzer machine was able to take an accurate reading of appellant’s blood, the trier of fact could accept or reject that evidence as probative on the issue of whether appellant was intoxicated by reason of a combination of marijuana and alcohol at the time appellant was driving. The test result did not conclusively establish that appellant ingested no alcohol, and was itself contradicted by the appellant. Further, the trier of fact was free to believe the arresting officer’s testimony that appellant was intoxicated and appellant’s statements that he had consumed both marijuana and alcohol, but reject appellant’s statements regarding when and how much he had consumed. Palafox v. State, 509 S.W.2d 846 (Tex.Crim.App.1974).

When viewed in the light most favorable to the judgment, we find that the evidence was sufficient for the court to find appellant guilty. Appellant’s ground of error is overruled.

The judgment is affirmed.

LEVY, J., dissents.