Perkins v. State

940 S.W.2d 365, 1997 Tex. App. LEXIS 869, 1997 WL 78496

• Court: Court of Appeals of Texas
• Decided: February 26, 1997
• Docket: 10-95-165-CR
• Status: Published

Opinions

OPINION

FRANK G. McDONALD, Chief Justice (Retired).

Appellant Perkins appeals from his conviction for driving while intoxicated, third offense, for which he was sentenced to five years in the Texas Department of Criminal Justice, Institutional Division, probated, and a $600 fine.

About 11:00 p.m. on April 2, 1994, Dallas Firefighter Farrell investigated a parked car in the middle of the road on Military Parkway. Farrell testified that Appellant was slumped over the steering wheel and passed out; that he smelled of alcohol; noticed beer cans in the back seat, and that he summoned the police.

Officer Johnson arrived at the scene about 11:15 p.m. Johnson testified he believed Appellant to be intoxicated; had alcohol on his breath; had slurred speech and an unsteady stance. Johnson arrested Appellant and transported him to the Lew Sterrett Justice Center where Appellant refused to submit to blood and breath tests, but was videotaped within forty minutes after his arrest. The video tape is in evidence.

Appellant denied that he was intoxicated; he testified he had spent the day at a recreation center producing a talent show for children; that he left the center at 9:00 p.m. with a friend, Emil Thompson, and went to a car wash where he washed his car and drank one beer; that he left the car wash to go to a friend’s house and had stopped his car to look at his mapso and was leaning forward when Farrell opened his car door and asked him if he had been drinking. He further testified that Officer Johnson arrived and asked him if he had been drinking and if he had any warrants; that he replied he had had one beer and did have a probation violation warrant for DWI.

Emil Thompson testified he was with Appellant until 9:45 p.m.; that Appellant drank one can of beer at the car wash; that Appellant was not intoxicated; that Appellant took some medication during the evening; that he noticed Appellant’s nose was running but he was not “woozy.” Additional evidence will be recited in our discussion of Appellant’s points.

Trial was before the judge without a jury. The judge found Appellant guilty and sentenced him to five years in prison, probated, and a $500 fine.

Appellant appeals on two points of error.

Point one: “The evidence is legally insufficient to support the conviction for driving while intoxicated.”

In reviewing the legal sufficiency of the evidence, this court must view all the evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the essential elements of the offense, including Appellant’s intoxication, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 160 (Tex.Crim.App.1991).

Witness Farrell testified Appellant was intoxicated. Officer Johnson testified Appellant was intoxicated and that he did not have the normal use of his physical faculties. Appellant admitted he had one beer. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt.

Point one is overruled.

Point two: “The evidence is factually insufficient to support the conviction for driving while intoxicated.”

In conducting a review of the factual sufficiency of the evidence, this court views the evidence without the prism, “in the light most favorable to the prosecution,” and should set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996); Stone v. State, 823 S.W.2d 375, 377 (Tex.App.—Austin 1992). Under the Clewis standard, we consider the evidence of defense witnesses and the existence of alternative hypotheses.

Farrell testified Appellant “seemed to be intoxicated.”

Q. But you did not know for sure?

A. No, sir.

Q. It’s just an assumption on your part?

A. Yes, sir.

Farrell further testified, “I remember seeing beer cans, I believe in the back seat,” and that “there were no open containers in the front compartment of the car.”

Officer Johnson testified that he noticed the strong smell of alcohol on [Appellant’s] breath; he had a very unsteady stance; he did not believe [Appellant] had the normal use of his physical faculties; his speech was slurred and he seemed disoriented. He [Johnson] thought the cause was alcohol; and that Appellant refused both the breath and blood tests. Johnson did not see any beer cans in Appellant’s car.

Appellant admitted he had one beer, thus accounting for the smell of alcohol. This was substantiated by witness Thompson. There is no evidence Appellant drank more than one beer. While Farrell believed he saw beer cans in the back of Appellant’s car, Officer Johnson saw no beer cans. Appellant testified that no beer cans were present in his automobile. None were introduced in evidence even though the vehicle was impounded by the police; hence, under police control where it could have been searched and an inventory of its contents photographed. Consumption of alcohol alone does not mandate a conclusion of intoxication.

Officer Johnson noticed slurred speech, disorientation and an unsteady stance. Appellant testified he had worked since early in the morning putting together a show for children at a recreation center and he was weary. It was late at night. Appellant was distressed, believing his warrant had caught up with him. He testified he was suffering from sinus difficulties and had taken Nyquil for that problem earlier in the evening. Officer Johnson testified Appellant could not pass some simple “field sobriety” tests, i.e., that he recited the alphabet but ended in “TUZ” and stated he could not count backward from 38 to 22. This testimony was disputed by Appellant.

Finally, this court has viewed State’s Exhibit 1, the video tape taken of Appellant less than forty minutes after his arrest. The video tape fails to demonstrate that Appellant was intoxicated and fails to demonstrate that Appellant was mentally or physically impaired. On the video tape Appellant was cooperative with the officers, spoke clearly, and was able to follow directions. He did not stumble, fall down or appear in any way disoriented. He recited the alphabet without error. He counted backwards from 38 to 22 with only one error. The video tape demonstrated that Appellant was not intoxicated. From all the evidence, we hold that a finding of intoxication is so against the great weight and preponderance as to be unjust and manifestly wrong. And given that the State’s burden of proof at trial “was beyond a reasonable doubt,” our review of the evidence, both for and against the finding, convinces us that the verdict is clearly wrong and unjust.

Point two is sustained.

The judgment is reversed and the cause remanded for a new trial.

CUMMINGS, J., dissents.