Max Vera v. State

• Court: Court of Appeals of Texas
• Decided: March 29, 2007
• Docket: 13-05-00565-CR
• Status: Published

Opinion

NUMBER 13-05-565-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MAX JAY VERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law

of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela

Memorandum Opinion by Justice Yañez

Appellant, Max Jay Vera, appeals his conviction for the offense of driving while intoxicated (DWI). Appellant contends the evidence was not legally and factually sufficient to support his conviction. ⁽¹⁾ We affirm.

The State's Burden of Proof

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. ⁽²⁾ "Intoxicated" means: (a) 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 (b) having an alcohol concentration of 0.08 or more. ⁽³⁾ The State alleged a theory under subdivision (a) Appellant complains that the State failed to prove that he did not have the normal use of his mental or physical faculties.

The State's Evidence ⁽⁴⁾

Deputy Sheriff Shorty Franco of the San Patricio Sheriff's Department provided the following testimony at trial. On the night of June 17, 2004, Franco heard a dispatch regarding a reckless driver; the driver's location and a vehicle description were provided. A subsequent dispatch informed Franco that the described vehicle was at another nearby location. Franco drove toward this location and spotted appellant's vehicle, which matched the description provided by the dispatcher. According to Franco, the vehicle was parked on the shoulder of a road with the engine running and the flashers on. Franco approached the vehicle and found appellant slumped over the steering wheel; he was asleep and drooling. Franco banged on the driver's side window for a few minutes in an attempt to awake appellant. When appellant awoke, he exited the vehicle and talked with Franco. Franco testified that appellant stumbled out of the vehicle and that he smelled of alcohol.

Deputy Sheriff Ruben Rodriguez also testified at appellant's trial. According to Rodriguez, he arrived on the scene after Franco, but before appellant stepped out of his vehicle. Furthermore, Rodriguez said he arrived at the scene after hearing a dispatch regarding a vehicle that was "weaving all over the road and had gone almost off the road three times." While at the scene, Rodriguez observed that appellant had slurred speech, unsteady feet, and alcohol on his breath. Rodriguez's observations were complemented by the testimony of Deputy Sheriff Charles Jones. Jones testified that appellant emitted a strong odor of alcohol and that he had slurred speech and glassy eyes.

Trooper Brian Fishbeck, from the Texas Department of Public Safety, testified to first encountering appellant at the sheriff's department. According to Fishbeck, he asked appellant to participate in a field sobriety test, but appellant refused. Fishbeck testified that appellant responded to his request by stating, "You have enough on me already. I am not giving you anything else." In describing appellant's demeanor, Fishbeck provided the following testimony: "I noticed a very strong odor of alcohol about his person, his eyes were very red, very bloodshot and glassy. Whenever I would speak to him, his speech was very slurred, very thick-tongued speech." In Fishbeck's opinion, appellant was intoxicated.

The State also played a videotape of appellant's arrest for the trial court. The footage on the tape does not refute the testimony provided by the State's witnesses. The tape shows the following: (1) a truck is parked on the side of the road with its engine running and a right turn signal flashing; (2) an officer approaches the driver's side door and, for approximately three minutes, continuously pounds on the door's window, makes several attempts to open the door, and repeatedly requests in a loud voice for appellant to unlock door; and (3) appellant exits the vehicle, talks with officers, and is subsequently arrested. ⁽⁵⁾

Appellant's Evidence

Appellant's sole witness was his wife, Maralene Vera. Maralene testified that appellant had been medically diagnosed with sleep apnea. According to Maralene, appellant often exhibited difficulty in staying awake; she had known him to fall asleep during conversations, meetings, and while driving. Maralene testified that when appellant begins to fall asleep while driving, it is customary for him to pull over to the side of a road to sleep. She further testified that appellant had undergone knee surgery in 1996; since that time, he has had difficulty exiting his truck because doing so necessitates the use of the truck's running board. Lastly, Maralene stated that appellant worked approximately 15 hours at a refinery on the day of his arrest.

Legal Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ⁽⁶⁾

Viewing the evidence in the light most favorable to the verdict, the State presented direct evidence on the intoxication element of the charge. Namely, four law enforcement officials testified that they observed signs of intoxication in appellant's demeanor and behavior. The State's witnesses testified that appellant stumbled, was unsteady on his feet, smelled of alcohol, slurred his speech, and had red and glassy eyes. It was upon making these observations that the deputies concluded that appellant was intoxicated and arrested him. ⁽⁷⁾

Given this testimony, we believe a rational trier of fact could find the elements of the charge proven beyond a reasonable doubt. After reviewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support the appellant's conviction. Appellant's first issue is overruled.

Factual Sufficiency of the Evidence

In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. ⁽⁸⁾ We then determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. ⁽⁹⁾ We will not reverse a case on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. ⁽¹⁰⁾ The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. ⁽¹¹⁾

Appellant directs our attention to evidence he contends creates a reasonable doubt as to intoxication. First, appellant directs us to Maralene's testimony, in which she contends it was appellant's physical condition that caused him to sleep and stumble, not intoxication. Second, appellant notes that no witness saw him operating his vehicle, and a search of his vehicle did not uncover any open containers of alcohol. Lastly, appellant contends that he had normal use of his mental and physical faculties as evidenced by the fact that he "pulled his vehicle off the highway, placed his car in park, and engaged his hazard lights prior to falling asleep."

We believe the trier of fact was presented with ample evidence so as to conclude that appellant did not have the normal use of his mental or physical faculties. By finding appellant guilty, it is apparent that the trial court chose to believe the State's witnesses, and found Maralene's testimony unconvincing. After considering all of the evidence available to the trial court in a neutral light, we find that the verdict is not so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Therefore, we hold the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue.

Conclusion

We conclude the evidence presented at trial was both legally and factually sufficient to support the appellant's conviction. As such, we affirm the judgment of the trial court.

LINDA REYNA YAÑEZ,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 29th day of March, 2007.

1. On appeal, appellant also argued that he was entitled to a new trial because the videotape that captured his arrest was not before this Court at the time he filed his brief and was believed to be lost. According to appellant, the tape, which was shown at trial, is necessary to this appeal's resolution. The State, however, ultimately supplied this Court with the tape, and we have utilized it in coming to our ruling. This issue is thus moot.

2. Tex. Pen. Code Ann. § 49.04 (Vernon 2003).

3. Id. § 49.01(2).

4. The State did not file a brief.

5. In reviewing the video, we cannot definitively conclude that appellant did or did not stumble while exiting his vehicle; therefore, we cannot say the video either refutes or supports Franco's testimony that appellant stumbled upon exiting. What was communicated between the officers and appellant at the time of arrest was suppressed at trial; for that reason, we have not discussed that communication herein. With regard to appellant's ability to walk or stand, we do note that appellant appeared to move slowly, but we ultimately cannot conclude whether or not appellant was unsteady on his feet as testified to by Rodriguez.

6. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).

7. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (holding that the trooper's testimony was sufficient to establish intoxication element where he observed appellant was off-balance, had red eyes, mush-mouthed speech, and breath that smelled of alcohol).

8. See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).

9. Id. at 415.

10. Id. at 417.

11. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).