Paschall v. State

285 S.W.3d 166, 2009 Tex. App. LEXIS 2201, 2009 WL 903379
CourtCourt of Appeals of Texas
DecidedApril 2, 2009
Docket2-07-461-CR
StatusPublished
Cited by64 cases

This text of 285 S.W.3d 166 (Paschall 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
Paschall v. State, 285 S.W.3d 166, 2009 Tex. App. LEXIS 2201, 2009 WL 903379 (Tex. Ct. App. 2009).

Opinions

OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Anthony Paschall appeals his conviction for felony driving while intoxicated for which he was sentenced to twenty-five years’ imprisonment. Paschall filed a brief alleging thirteen points of error and later filed documents with this court in which he waived his fifth through eleventh points. In his remaining six points, Pasc-hall argues that the trial court erred by allowing the admission of two exhibits, that the evidence introduced at trial was legally and factually insufficient to prove that he had been convicted of the alleged jurisdictional DWI enhancement paragraphs, and that the evidence was legally and factually insufficient to support his conviction for driving while intoxicated. We will affirm.

II. Factual and Procedural Background

A. The State’s Witnesses

Karen Morgan testified that on June 14, 2007, she was driving northbound on I-35E from Dallas to Denton and noticed an SUV moving slowly near the exit for Corinth Parkway. As soon as Morgan passed the SUV, the driver sped up, swerved, and almost hit the guardrail. Morgan noticed that after this near miss, the driver of the SUV “slowed way down” and seemed to drift into a different lane. Then, suddenly, the driver of the SUV sped up again and drove in between the left and the right lanes, such that he was not in either lane. The SUV appeared to come within four or five inches of Morgan’s bumper, so she swerved a little bit because she thought it was going to hit her. At that point, Morgan decided to call 9-1-1 because she thought the driver of the SUV was going to cause an accident. Morgan stayed on the phone with the 9-1-1 operator until she reached the Loop 288 exit, and during that time, the SUV continued to drift back and then catch up. When Morgan exited at Loop 288, she told the 9-1-1 operator that the SUV continued northbound, and the operator told her that the police had been called. Morgan testi[169]*169fied that she did not see the driver drinking; however, she said that the driver’s continual slowing down and speeding up made her think that he was tired or had been drinking because the pattern was not like someone who was on a cell phone or who was putting on makeup and made a sudden, quick swerve.

Officer Brian Coast with the City of Denton Police Department testified that he was on his way to work on June 14, 2007, between 6:30 and 6:45 p.m. in his marked patrol car when he heard a fire department calling in about a reckless driver that was headed in Officer Coast’s general direction. The police dispatch immediately started to broadcast information about the reckless driver. Three civilians had called to report the reckless driver, along with the fire truck. The dispatch described the vehicle in question as an older model dark-colored Ford Explorer with its headlights on and said that the vehicle was heading northbound at State School Road. Officer Coast made a u-turn and headed towards that area to intercept the vehicle.

Officer Coast spotted the vehicle — a dark Ford Explorer with its headlights on — at the intersection of Teasley Lane; Officer Coast knew that it was the vehicle in question because one of the callers had stayed on the phone with the 9-1-1 operator and continued to relay the location. Officer Coast was southbound on Teasley Lane, so he moved into the right-turn lane in order to get behind the vehicle. Officer Coast noted that the driver of the vehicle had stopped in the intersection blocking two lanes of traffic. When the light turned green, the vehicle passed Officer Coast, and Officer Coast moved in behind it. Before Officer Coast could initiate a traffic stop, the driver of the vehicle pulled into the parking lot at a 7-Eleven convenience store and parked.

Officer Coast pulled up behind the SUV and walked up to contact the driver, who was the sole occupant in the vehicle. When Officer Coast walked up, the driver was in the process of getting out of the vehicle. Officer Coast saw that the driver was fumbling and struggling with the seat belt, which was “hung up” on his arm. After the driver got out, Officer Coast noticed that the driver’s shorts were unzipped. Officer Coast asked the driver for identification, and the driver provided it, revealing that he was Anthony Paschall.

Officer Coast asked Paschall why his pants were undone, and he replied that he was on his way from Dallas to Oklahoma and had an urgent need to urinate. Officer Coast asked Paschall if he had consumed anything to drink or if he had taken any medication, and Paschall said that he had not taken any medications nor consumed anything to drink. Officer Coast did not smell alcohol on Paschall.

Officer Coast decided to initiate a DWI investigation because he had noticed that Paschal’s speech was slurred and that he was swaying and appeared to seek out something to hold onto to steady himself while they were talking. At trial, Officer Coast explained the three field sobriety tests to the jury and stated that the horizontal gaze nystagmus (HGN) test is important in a DWI investigation because HGN is caused only by alcohol, depressants, inhalants, PCP, or a brain stem injury. During the HGN test, Officer Coast noticed that Paschall’s pupils were “very constricted” and that Paschall exhibited four clues on the test, which was enough to indicate intoxication by an inhalant, a depressant, or PCP.

Officer Coast then began to give Pasc-hall the instructions for the walk-and-turn test. Paschall, however, interrupted him and advised that he would be unable to take the test because he had undergone [170]*170surgery on his left foot. Officer Coast omitted the walk-and-turn test and asked Paschall to perform the one-leg stand after he had answered affirmatively when asked if he could stand on one leg. After Pasc-hall failed the test, he said that he had undergone operations on both feet.

Officer Coast then asked Paschall what his highest level of education was, and Paschall responded that he had earned an associate’s degree. Officer Coast asked Paschall to recite the alphabet from D to Q, and Paschall said, “E, F, G, H, Q.” Officer Coast asked Paschall to say the alphabet from beginning to end, and Pasc-hall said, “A, B, C, D, E, F, G, H, Q, Z.” Paschall responded correctly when asked how many letters are in the alphabet.

Officer Coast moved on to the counting test and asked Paschall to count backwards from fifty-six to twenty-seven. Paschall started counting forward, so Officer Coast interrupted him and allowed him to start over. Paschall said the number fifty twice and then asked Officer Coast to l'epeat the instructions again. Paschall eventually started with fifty and counted backward slowly to forty-two and stopped.

At that point, Paschall asked, “Where are we going with this?” Officer Coast said that he was trying to determine Pasc-hall’s level of intoxication, and Paschall told Officer Coast to search his car. Officer Coast again asked Paschall whether he had drunk anything, and Paschall responded this time that he had consumed “one or two” that morning around 7 or 8 a.m. The search of the car did not reveal any drugs or alcohol.

Officer Coast concluded that Paschall did not have the normal use of his mental or physical faculties and that the cause for that was something other than alcohol. Officer Coast arrested Paschall and took him to the Denton County Jail. Officer Coast did not offer Paschall a breath test because that tests only for alcohol.

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Cite This Page — Counsel Stack

Bluebook (online)
285 S.W.3d 166, 2009 Tex. App. LEXIS 2201, 2009 WL 903379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paschall-v-state-texapp-2009.