Sego, Charles Thomas v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2006
• Docket: 14-04-01113-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 18, 2006

Affirmed and Memorandum Opinion filed July 18, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-01113-CR

CHARLES THOMAS SEGO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1233863

M E M O R A N D U M   O P I N I O N

Charles Thomas Sego appeals a conviction for driving while intoxicated (ADWI@)^[1] on the grounds that the evidence is legally and factually insufficient to support his conviction.  We affirm.

Appellant=s first and second issues contend that the evidence is legally and factually insufficient to support his conviction because no reasonable inference of intoxication by alcohol, or an equally reasonable inference to the contrary, can be drawn from: (1) appellant=s refusal to take an intoxilyzer test and refusal to participate in field sobriety tests; (2) appellant=s performance on the horizontal gaze nystagmus (AHGN@) test; (3) appellant=s manner of operating his vehicle, i.e., driving 90 mph in a 60 mph speed zone; (4) appellant=s inability to fully recite the alphabet; (5) appellant=s actions and demeanor on the roadside and station videotape; and (6) the arresting officer=s opinion that appellant was intoxicated.

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005), cert. denied, 126 S.Ct. 481 (2005).  In reviewing factual sufficiency, we view the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof.  Id. at 730-31.

The jury was authorized to convict appellant of DWI if it found that, while operating a motor vehicle in a public place, he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body.  See Tex. Penal Code Ann. '' 49.01(2), 49.04(a) (Vernon 2003). 

The arresting officer^[2] testified that he believed appellant had lost the normal use of his mental or physical faculties due to intoxication by alcohol because appellant: (1) was driving at an excessive rate of speed, had an odor of alcohol on his breath, a dazed look on his face, and slow, fumbling reactions; (2) displayed six clues indicating intoxication from

the HGN test; (3) refused to perform the other standardized field sobriety tests because of an allegedly bad leg or foot; and (4) was unable to recite the alphabet after three attempts.^[3]  In addition, once he was arrested and transported to the police station, appellant: (1) refused to take an intoxilyzer exam^[4] or any other standardized sobriety tests; (2) had difficulty reading questions; and (3) exhibited mental confusion and bloodshot eyes. Viewing this evidence in the light most favorable to the verdict, a rational jury could have found that appellant, while operating his vehicle, did not have the normal use of his mental or physical faculties, by reason of introducing alcohol into his body.  See Prible, 175 S.W.3d at 729-30.

Appellant points to the following evidence to show that he was not intoxicated: (1) admissions, on cross-examination, by several of the police officers that there can be reasons other than intoxication for behavior like appellant=s^[5]; and (2) statements by several officers that the HGN test performed on appellant may not have been performed in the standardized manner,^[6] although the State=s expert testified that, in his opinion, it was performed properly.  Additionally, appellant asserts that the videotape of the roadside stop and subsequent interview at the police station demonstrate that he had not lost the normal use of his physical and mental faculties because he exhibited a logical thought process, an ability to understand and follow directions, and made the choice to give a Agood refusal@ rather than submit to any sobriety testing.^[7] 

After viewing all the evidence in a neutral light, the controverting considerations relied on by appellant do not demonstrate that proof of his guilt is so obviously weak as to undermine confidence in the jury=s determination, nor greatly outweighed by contrary proof.  See id. at 730-31.  Accordingly, appellant=s first and second issues fail to establish that the evidence is legally or factually insufficient to support his conviction and are overruled.  The judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 18, 2006.

Panel consists of Justices Fowler, Edelman and Guzman.

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

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^[1]           A jury found appellant guilty, and the trial court sentenced him to 180 days confinement, suspended the sentence and ordered community supervision for one year, and imposed a $1,500 fine.

^[2]           All the officers testifying at trial were specially trained through a DWI certification program to recognize intoxicated persons.

^[3]           The opinion testimony of the arresting officer is sufficient to prove the element of intoxication.  Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979).

^[4]           A refusal to take a blood-alcohol test is relevant and admissible as evidence of intoxication.  See Tex. Transp. Code Ann. ' 724.015 (Vernon Supp. 2005); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001).

^[5]           However, appellant provided no evidence that he suffered from any of the conditions the officers indicated might affect either the results of the HGN or his behavior.

^[6]           On cross-examination, the arresting officer indicated that he did not hold the pen the requisite twelve to fifteen inches from appellant=s face during the entire administration of the HGN test because appellant was swaying and moved his face closer to the pen as the test progressed.  However, appellant offered no evidence that such a deviation could affect the accuracy of the test.

^[7]           We do not agree that the tape affirmatively demonstrates a lack of intoxication.