Nichols v. State

877 S.W.2d 494, 1994 Tex. App. LEXIS 1280, 1994 WL 231878
CourtCourt of Appeals of Texas
DecidedJune 1, 1994
DocketNo. 2-92-486-CR
StatusPublished
Cited by42 cases

This text of 877 S.W.2d 494 (Nichols v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nichols v. State, 877 S.W.2d 494, 1994 Tex. App. LEXIS 1280, 1994 WL 231878 (Tex. Ct. App. 1994).

Opinion

OPINION

LATTIMORE, Justice.

Appellant Claude Daniel Nichols was convicted by a jury of the offense of driving while intoxicated. See Tex.Rev.Civ.Stat. Ann. art. 6701Z-1 (Vernon Supp.1994). The jury assessed punishment at two years in jail probated for two years and a fine of $2,000. On appeal Nichols raises three points of error contending: (1) the evidence is insufficient to support the conviction; and (2) — (3) the trial judge erred in admitting into evidence testimony resulting from an unlawful search and seizure under the Texas Constitution and laws and the Fourth and Fourteenth Amendments of the United States Constitution.

We affirm.

In the early morning hours of July 2,1989, Trooper Leo Bell observed a Jeep abandoned beside a road in Denton County, with its door open. Trooper Bell found Nichols lying on the ground about thirty feet from the Jeep in an intoxicated condition, and arrested him for DWI. Trooper Scott Houghten arrived shortly thereafter, and also observed Nichols in an intoxicated state. A gun, Nichols’ drivers license, cocaine, and a locked box was found in the Jeep, which was towed away. Nichols was arrested for driving while intoxicated, possession of a controlled substance, and unlawful carrying of a weapon. A search warrant was issued for the locked box, and articles belonging to Nichols were discovered inside. A videotape of Nichols was made and [496]*496introduced into evidence. At trial, Debra Perryman testified that on July 2, 1989, she was at a party at a farm in Lake Dallas, Denton County, where she observed Nichols in an intoxicated state, and saw him driving erratically from the farm and onto the road where he and the Jeep were later found by Troopers Bell and Houghten. She further testified that she had seen the Jeep abandoned on the road shortly after Nichols drove it away from the farm. Ron Steele testified that he was also at the party with Nichols, that Nichols was not intoxicated, but neither was he “stone cold sober.” Steele further testified that in his opinion Nichols never drove the Jeep, because Nichols “wasn’t gone that long from me for any amount of time.” Nichols testified that he had been drinking at the party but was not intoxicated, that he did not drive the Jeep, and did not know how his possessions got into the vehicle. He stated that he had been waiting at the gate of the farm for a ride, walked off into the field adjacent to the Jeep, and laid down.

In his first point of error Nichols contends that the evidence is insufficient to support the verdict and judgment of conviction. In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on reh’g), overruled on other grounds, Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the prosecution’s evidence or believe that the defense evidence “outweighs” the State’s evidence. See Urbano v. State, 837 S.W.2d 114, 115 (Tex.Crim.App.1992); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Urbano, 837 S.W.2d at 115-16; Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). The standard for review is the same for direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158-62.

Nichols argues that there was no testimony that he was seen driving the vehicle at the location where the vehicle was found, or that he owned or had the keys to the vehicle. Thus, Nichols contends that an essential element of the offense — operating a vehicle on a public street — was not proved, even circumstantially. We disagree. Debra Perryman testified that she knew Nichols, and was of the opinion that Nichols was intoxicated immediately before he drove away. She testified that “[h]e made it out of the gate and then sped over here into the gravel, spit up the gravel, finally got out of there; went down the driveway and down the road.” About fifteen to twenty minutes after Nichols left, Perryman testified that she saw the Jeep that Nichols had driven abandoned on the road. The DPS officer found Nichols about thirty feet from the abandoned Jeep in an intoxicated condition. To rebut this testimony, Nichols offered the testimony of Ron Steele, who said that Nichols was not intoxicated, and did not drive the Jeep. The jury is the sole judge of the credibility of witnesses and may accept or reject any part or all of the testimony given at trial. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. [Panel Op.] 1978). The jury was entitled to believe the testimony of Perryman, and to disbelieve the testimony of Steele. We hold that the jury could have found the essential elements of the offense of driving while intoxicated beyond a reasonable doubt after viewing this evidence. Point of error one is overruled.

[497]*497In his second and third points of error, Nichols complains that the trial judge erred in admitting into evidence testimony about the contents of the box found in the vehicle Nichols is alleged to have driven, and thus violated Nichols’ right to be free from unlawful search and seizure under the Texas Constitution and laws and the Fourth and Fourteenth Amendments of the United States Constitution. Nichols argues that there was no probable cause to support the issuance of the search warrant because the search warrant affidavit failed to specify the date and time when the facts contained in the affidavit occurred. The affidavit reads as follows:

The undersigned Affiant, being a Peace Officer under the laws of Texas and being duly sworn, on oath makes the following statements and accusations:
1. There is in Denton County, Texas, a suspected place and premises described and located as follows: a tan box approximately 12" x 12" x 5" which was located behind the driver’s seat of a blue jeep bearing TX LP # 971BDX. At the time the box was discovered

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Bluebook (online)
877 S.W.2d 494, 1994 Tex. App. LEXIS 1280, 1994 WL 231878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-state-texapp-1994.