NUMBER 13-10-00183-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

SAMUEL CHARLES VAN NESS IV

A/K/A SAMUEL CHARLES VANNESS IV, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law

of Polk County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez

Appellant Samuel Charles Van Ness IV a/k/a Samuel Charles Vanness IV 

challenges his conviction for driving while intoxicated, a class B misdemeanor, for which 

he was sentenced to 180 days' incarceration in county jail. See TEX. PENAL CODE 

ANN. § 49.04(a)-(b) (West 2003). By one issue, Van Ness argues that the evidence was 
2

insufficient to prove that he "did not have the normal use of his mental or physical faculties 

by reason of the introduction of alcohol into his body." (Emphasis in original.) We 

affirm.

I. BACKGROUND1

Van Ness was charged by information and complaint as follows:

[O]n or about the 20th day of November, 2009, . . . in the County of Polk and 

the State of Texas, SAMUEL CHARLES VANNESS, IV, defendant[,] did 

then and there operate a motor vehicle in a public place while the said 

defendant was intoxicated by not having the normal use of mental or 

physical faculties by reason of the introduction of alcohol into the body.

Van Ness pleaded not guilty, and the case was tried to a jury.

At trial, the State offered the testimony of one witness—Livingston Police 

Department Officer Scott Paske, the officer who made the traffic stop and arrest. Officer 

Paske testified that he pulled Van Ness over after Van Ness made an "aggressive" left 

turn in front of his patrol car without signaling, which Officer Paske testified was illegal. 

Officer Paske approached Van Ness's vehicle and stated that "[r]ight away, [he] could 

smell an odor of alcohol when [he] was talking to him, coming from [Van Ness's] breath 

and in the vehicle." Officer Paske ordered Van Ness to step out of the vehicle, and when 

he did, Van Ness was "unsteady, unbalanced, and slurring at certain times." Officer 

Paske testified that he looked inside the vehicle and saw a "12-ounce can of beer open, 

sitting on the driver's floorboard" and "a third pack of beer sitting behind the driver's seat." 

Officer Paske testified that he is trained to detect intoxication and that the odor of alcohol, 

slurred speech, and poor balance are all signs of intoxication.

 

1

This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to 

an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
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Officer Paske attempted to conduct field sobriety tests on Van Ness,2but Van 

Ness was uncooperative. Officer Paske stated that Van Ness "started dancing" and told 

Officer Paske, "Just take me to jail" and "Go ahead and arrest me." Officer Paske then 

arrested Van Ness. When he put Van Ness in his patrol car, Van Ness became more 

aggressive and "cuss[ed]" at Officer Paske. Officer Paske testified that he transported 

Van Ness to the police station, and when he placed Van Ness in a cell, Van Ness "got 

completely naked other than his shirt. He took off his socks, pants, and underwear, and 

he urinated all over everywhere except for the toilet that's provided in the cell." Officer 

Paske asked Van Ness for a blood sample because he believed that Van Ness also "had 

narcotics in his system." Van Ness offered to give a breath sample but refused the blood 

test.

On cross examination, Officer Paske testified that he stopped Van Ness in what is 

known to be a "potentially high narcotics-trafficking area." When asked by defense 

counsel whether he believed he would "find narcotics on [Van Ness]," Officer Paske 

responded, "I had no idea."

After the close of evidence and argument of counsel, the jury was charged that it

could find Van Ness guilty of driving while intoxicated if the evidence proved beyond a 

reasonable doubt that Van Ness "was intoxicated by reason of the introduction of alcohol 

into his body, and while so intoxicated, did operate a motor vehicle in a public place . . . ." 

The jury returned a guilty verdict. Punishment was tried to the court, which sentenced 

Van Ness to 180 days' confinement in the Polk County Jail and assessed a fine of $750. 

 

2 Officer Paske testified that his certification to perform field sobriety tests was expired at the time 

of Van Ness's traffic stop. Van Ness does not challenge anything related to the attempted field sobriety 

tests on appeal.
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This appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

In a sufficiency review, courts examine the evidence in the light most favorable to 

the verdict to determine whether "any rational fact finder could have found guilt beyond a 

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency standard is 

the only standard that a reviewing court should apply in determining whether the evidence 

is sufficient to support each element of a criminal offense that the State is required to 

prove beyond a reasonable doubt."). This standard requires reviewing courts to resolve 

any evidentiary inconsistencies in favor of the judgment, keeping in mind that the fact 

finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to 

give their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979) ("The jury, in all cases, is the exclusive judge of the facts 

proved, and of the weight to be given to the testimony . . . ."). Appellate courts do not 

re-evaluate the weight and credibility of the evidence; they only ensure that the jury 

reached a rational decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 

2009).

Legal sufficiency is measured by the elements of the offense as defined by a 

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. 

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge 

is one that accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's 
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theories of liability, and adequately describes the particular offense for which the 

defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. In 

this case, Van Ness committed the offense if he was "intoxicated while operating a motor 

vehicle in a public place." TEX. PENAL CODE ANN. § 49.04(a). "Intoxicated" means "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." Id. § 49.01(2)(A) (West 

2003).

III. DISCUSSION

By his sole issue, Van Ness argues that the evidence was insufficient to prove that 

he was intoxicated as alleged in the complaint and information in his case. Specifically, 

Van Ness argues that because he was "stopped in a high narcotics trafficking area, the 

arresting officer believed he had narcotics in his system, and [he] offered to give a breath 

specimen[ and] not blood," "[n]arcotics might well have been a cause of [Van Ness]'s 

condition." In other words, Van Ness argues that the State was required to prove that 

"he was intoxicated by reason of alcohol alone," and because it failed to do so, the 

evidence supporting the intoxication element was insufficient. We disagree.

First, we note that in Gray v. State, the Texas Court of Criminal Appeals held that 

"the substance that causes intoxication is not an element of the offense" of driving while 

intoxicated and therefore does not need to be proven because it is "not the forbidden 

conduct, the required culpability, any required result, or the negation of any exception to 

the offense." 152 S.W.3d 125, 132 (Tex. Crim. App. 2004) (citing TEX. PENAL CODE ANN. 
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§ 1.07(a)(22) (West Supp. 2010) (defining "[e]lement of offense")). The court reasoned 

that any conclusion to the contrary would promote trials "where the defense is essentially 

'Yes, I was intoxicated, but you alleged the wrong intoxicant, therefore I am entitled to an 

acquittal'"—which is the theory Van Ness appears to advance on appeal. Id. The court 

of criminal appeals declared that such a practice would be bad public policy: 

"[P]ermitting defendants to secure an acquittal merely by proving an alternative intoxicant 

constitutes an abuse of the system . . . contrary to the plain meaning of the DWI statute, 

which focuses on the acts of the defendant while intoxicated rather than the act of 

becoming intoxicated itself." Id. (internal quotations omitted). In light of Gray, we find 

Van Ness's argument unpersuasive.

Regardless, having reviewed all the evidence in the light most favorable to the 

verdict, we believe there was sufficient evidence presented at trial that alcohol was the 

substance that caused Van Ness's intoxication. Officer Paske smelled an odor of 

alcohol on Van Ness's breath and emanating from Van Ness's vehicle. Officer Paske 

also found in the vehicle an open beer can on the driver-side floorboard and a partially 

empty case of beer behind the driver's seat. That Officer Paske also believed Van Ness 

might be under the influence of narcotics does not alter the effect of the foregoing 

evidence—it was the job of the jury to evaluate the evidence presented at trial, and we will 

not second-guess their apparent factual determination that Van Ness was intoxicated by 

alcohol. See Brooks, 323 S.W.3d at 899 (holding that the jury is the exclusive judge of 

the facts); Laster, 275 S.W.3d at 517 (prohibiting the reviewing court from re-evaluating 

the weight and credibility of the evidence); see also Little v. State, 853 S.W.2d 179, 183 
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(Tex. App.—Corpus Christi 1993, no pet.) (citing Annis v. State, 578 S.W.2d 406, 407 

(Tex. Crim. App. 1979)) ("[U]ncorroborated testimony of an arresting officer is sufficient to 

prove the element of intoxication."). In sum, the evidence here was such that a rational 

jury could determine that Van Ness 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)(A), 49.04(a); Jackson, 443 U.S. at 318-19. We therefore conclude that 

the evidence was sufficient to support the intoxication element. Van Ness's sole issue is 

overruled.

IV. CONCLUSION

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

21st day of July, 2011.