//66-I5

ORIGINAL

COURT OF CRIMB^AL APPEALS

OCT 23 2015

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

No. 11-13-00241-CR

JAMES EDWARD SHAW JR..APPELLANT

V.

THE STATE OF TEXAS

[PETITION FOR DISCRETIONARY REVIEWl

(l)

FILED IN

COURT OFCRIMINAL APPEALS

OCT 23 2015

Abel Acosta, Clerk
LIST OF PARTIES

Presiding Judge Honorable Michael Moore

Appellant James Edward Shaw Jr

Appellee The State of Texas

Attorney for State District attorney Michael

(Trial Only) K. Burns

Attorney for Appellant Robert Floyd Watson

(Trial Only)

Attorney for Appellant Chad Cannon

(Appeal Only)

(<! )
CovJt_T S(\ttA - - ' ' '

, ,

TfcfcJfc, ^r (WtV-sor\tvtS , ,\\>

SVfiXsroR.-^ of~TW, C^v . , - 2

S**\exrtuA <a^ 9<roC&Wfc\ \Ws\orY .. .3

(o^ckvcncKS ^or Rc\)>£m3 , . >, . . . , . i~{

bxyxxv*xi\ • - • -5"

PrAY£TS. •For Rilit^ . - - - • •<(p

toeflU Co^ ^JWLtjV 7

R?Pt*)Axy , . ....... <g

» )
TABLE OF AUTHORITIES

cases v -^ OpWft* <aWV W<**«* c*Zz+&** &»K •. * • .5"

Aquirre v. State, 948 S.W.2d 377 (Tex. App.-HoustonT14th Dist.] iq

1997)

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2008) 7

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.-2007) 9

Dumas v. State, 812 S.W.2d 611 (Tex. App.-Dallas 1991, pet. ref'd).7

Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994)

Green v. State, 350 S.W.3d 617 (Tex. App.-Houston Tl4th Dist.]2011)7,I

Jackson v. Virqinia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979) 8,9

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) 8

Salinas v. State, 163 S.W.3d 734 (Rex. Crim. App. 2005) 7

(iV;
STATEMENT REGARDING ORAL ARGUMENT

Oral araument to the statements that DPS Trooper Blue made that

did not occur and Vidio show the facts: the followinq statements

was made.

a). "He" Trooper Blue ask appellant to exit vehicle and was

place in Blue patrol car.

VIDIO SHOWS THIS DID NOT TAKE PLACE.

b). Blue stated he administered the one-leq stand. Appellant

told Trooper Blue he cannot do the one-leq stand because

of back promblem, Therefore one-leg stand was not administer

ed.

c). Blue testified he had appellant blow into the PBT.

"APPELLANT DID NOT HAVE ANY RESULTS BECAUSE APPELLANT DID

NOT HAVE A BLOW IN THE PBT.
STATEMENT OF THE CASE

Appellant, James Edward Shaw, Jr., was convicted on his not

guilty plea for the offense of Driving while Intoxicated-3rd

or more. Appellant waived his riqht to a Jury Trial and the

court assessed a sentence of 40 years confinement in the Institu

tional Division of Texas Department of Criminal Justice, alonq

with a fine of $10,000.00.(CR 44). The Trial was conducted in

the 29th Judicial District Court of Palo Pinto county, Texas,

The Honorable Michael Moore, Judqe Presidinq, Appellant filed

his notice of appeal in the Eleventh court of Appeals.
!t.„i* . j».

STATEMENT OF PROCEDURAL HISTORY

Auqust 6 2015, Opinion and Judement made in the 11th court of

Appeals.

'!#•;' *'

3 )

?*&« ,„£» jsj..Ji« --^fl 'iiifcti ^i ir*"i.ff •ir- -in* **Irfl^rmtift^fl^^-rAjJlff^'yiii^fefr-tf- -V up..-,.... . hirfi&atA«rii.£& .

rWS
GROUNDS FOR REVIEW

I» THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT'S VERDICT AND SENTENCE.

(*<-;
£^^^ reason) Fur" Rsu/oJ

^t w TS^85^ °**i<*r '»* WW S^tewrt To Cowvii«?r Yoy-

(RVYV^^WtXW^ ^ To\& VW^rc^r ^W^W* W9t)l<Wt hft5 ^ AsS-^K W^m O^o *«V^w* i* 5>1 ^.

Tro^ix- <bW^ Co^t^^-^*: Wi. V,v^ VO© Tt^'OvO \o disbelief

(&>Trooptr Blut Also lisf<'F<'^~^t APP^lftrvf1r **«* To t»\fe

tc")Trooper &vj£,~V^*\T',*k"\Wft~Wx. ^^ *v>^^XfoW'W2-^

l?)X^ ^ ^SL^<- S\«&& ""Wc ^owptf &w 6m>~

voqvaS. \W, txvjv v ^-^D Ha* Too/; P/flc^ ,f

{\wul o? ^/A^c^^o e~s +5cK AtTml q.^ TM*Tte

nKT U.cr?5 )
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, The Appellant pravs that this

Honorable court reversed and remanded for a new trial, or in

the alternative a iudgment of acquittal be entered, or the case

be remanded for a new sentencing hearing,

({,?
James Edward Shaw Jr.,

Vs. No. 11-13-00241-CR

The State ofTexas,

T1

4

fiv-V

1 lTH COURT OF APPEALS

EASTLAND, TEXAS

JUDGMENT

* From the 29th District Court

ofPalo Pinto County,

Trial Court No. 14957.

* August 6, 2015

* Memorandum Opinion by Bailey, J.

(Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.)

This court has inspected the record in this cause and concludes that there

is no error in the judgment below. Therefore, in accordance with this court's

opinion, the judgment ofthe trial court is in all things affirmed.

(70
Pfft/OdDL

EftfP*>oQz^J

v<o
/r

Petitioner's printed name:;

State b#;numb(^,/if.dppUciable:

Address:

Telephone^

Fax:

liNMAWS DE€XARAfION

^-^•^^^^^ v^>V^^K-^..---..: >. & theiaj|plicant/^titioner(circle one) and

being presently incarcerated in \\^Yx\ ~\L.Q\\ teNjv ^y^\\ , declare under penalty of

perjurythat, according to my belief the facts stated in the above applicationare true andcpifect.

Signed on \Q ~ ^Vp 20 1^5 .

attu-eiofAppfica^Petitioner (circle one)

«t

<m*rUwM
PETITIONER'S INFORMATION

Petitioner's printed name: * -

Address:" __^__ •••„ ^:, ,,•,,,,„,—:—_

Telephoned

fax: .___

Signed oh

18;

-A

Signature of Petitioner

'Revi;01/14/14.
Opinion filed August 6, 2015

acoaacOIn The

Clebentli Court of Appeals;

No. 11-13-00241-CR

JAMES EDWARD SHAW JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 14957

MEMORANDUM OPINION

Appellant, James Edward Shaw Jr., appeals his conviction for felony driving

while intoxicated. After a bench trial, the trial court sentenced Appellant to

confinement in the Institutional Division of the Texas Department of Criminal

Justice for a term of forty years and a fine of $10,000. In one issue on appeal,
Appellant challenges the sufficiency ofthe evidence to support his conviction. We

affirm.

Background Facts

Trooper Burt Blue ofthe Texas Department of Public Safety testified that he

saw Appellant driving a vehicle after dark without the taillights activated. When

Trooper Blue stopped Appellant, he smelled "the odor of alcohol coming from the

truck." Appellant stepped out ofthe vehicle, and Trooper Blue noticed that he had

bloodshot eyes and that his speech was "real thick-tongued and slurred." Trooper

Blue asked Appellant if he had had anything to drink, and Appellant said that he had

drunk "two Natural Lights."

Trooper Blue then conducted three field sobriety tests. Appellant exhibited

six out ofsix possible clues for intoxication on the horizontal gaze nystagmus test.

Appellant next performed the walk-and-turn test. Trooper Blue observed seven out

of eight possible clues for intoxication. Appellant then attempted the one-leg stand

test. Appellant displayed three out of four possible clues for intoxication.

After conducting the field sobriety tests, Trooper Blue determined that

Appellant was too intoxicated to drive. Trooper Blue arrested Appellant for driving

while intoxicated. Trooper Blue then transported Appellant to the Palo Pinto

General Hospital. Appellant initially consented to giving a breath specimen.

However, the intoxilyzer testing machine malfunctioned, resulting in Trooper Blue

being unable to collect a breath specimen. Appellant then refused to give a blood

specimen that Trooper Blue subsequently requested.

Analysis

In his sole issue on appeal, Appellant challenges the sufficiency of the

evidence to support his conviction. He characterizes his evidentiary contention as a

factual sufficiency challenge. In doing so, he concedes in his briefthat the evidence

was legally sufficient. We review a sufficiency ofthe evidence issue, regardless of

2
whether it is denominated as a legal or factual claim, under the standard of review

set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.

App.—Eastland 2010, pet. refd). Irrespective of Appellant's concession that the

evidence was legally sufficient, we will review the sufficiency of the evidence

supporting his conviction to determine ifit is sufficient under Jackson.

Under the Jackson standard, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have

found the elements ofthe offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting

a sufficiency review, we consider all the evidence admitted at trial, including pieces

of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d

763, 767 (Tex. Crim. App. 2013); Claytonv. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). In conducting a sufficiency review, we defer to the factfinder's role as

the sole judge of the witnesses' credibility and the weight their testimony is to be

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the prosecution and

defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

A person commits the offense of driving while intoxicated "if the person is

intoxicated while operating a motor vehicle in a public place." Tex. Penal Code

• Ann. § 49.04(a) (West Supp. 2014). Appellant attacks only the element of

intoxication. Under the Texas DWI statute, intoxication may be proven in either of

two ways: (1) loss of normal use of mental or physical faculties or (2) alcohol

concentration in the blood, breath, or urine of 0.08 or more. Id. § 49.01(2) (West

3
2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). The first

definition is the "impairment" theory, while the second is the "per se" theory.

Kirsch, 306 S.W.3d at 743. We are only concerned with the impairment theory in

this appeal because a specimen was not obtained from Appellant for testing.

Circumstantial evidence may prove that a person has lost the normal use of his

mental or physical faculties by reason of introduction of a controlled substance or

drug into his body. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App.

1973). For purposes of the DWI statute, proving an exact intoxicant is not an

element ofthe offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).

Appellant premises his evidentiary challenge to the element ofintoxication on

a number of arguments. He initially contends that the malfunction ofthe intoxilyzer

testing machine deprived him ofthe opportunity to disprove that he was intoxicated.

He also asserts that he informed Trooper Blue that he had back problems and a

speech impediment and that these conditions provided an explanation for the matters

that Trooper Blue observed about his physical condition. Appellant additionally

contends that the video recording ofhis encounter with Trooper Blue did not support

the finding that he was intoxicated.

Trooper Blue testified that he saw Appellant driving without his vehicle's

taillights on after dark. When Trooper Blue stopped Appellant, he smelled "the odor

of alcohol coming from the truck," and Trooper Blue noticed that Appellant had

bloodshot eyes and that his speech was "real thick-tongued and slurred." Trooper

Blue asked Appellant if he had had anything to drink, and Appellant said that he had

drunk "two Natural Lights."

Trooper Blue then conducted three field sobriety tests. In this regard,

Trooper Blue has been a trooper since 2006, and he testified that he had been trained

to conduct standard field sobriety tests. Trooper Blue additionally testified that he

has attended an advanced DWI class and that he is also certified as a drug recognition

4
expert. He also testified that he has made "[m]any" arrests for DWI and that he has

had "[m]any" occasions to observe people whom he believed to be intoxicated.

Trooper Blue testified that Appellant failed all three tests. Based on his

observations, Trooper Blue concluded that Appellant was intoxicated while

operating a motor vehicle. Trooper Blue's testimony is probative evidence of

intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]

1979) (as a general rule, the testimony of an officer that a person is intoxicated

provides sufficient evidence to establish the element of intoxication for the offense

ofDWI); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,

pet. refd) (same); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston

[1st Dist.] 2000, pet. refd) (same).

With respect to Appellant's contention that he was denied a chance to give a

breath sample to disprove that he was intoxicated, it is within the officer's discretion

to determine what method to use when testing for intoxication. Tex. Transp. Code

Ann. § 724.012(c) (West 2011); Aguirre v. State, 948 S.W.2d 377, 379-80 (Tex.

App.—Houston [14th Dist.] 1997, pet. refd); Drapkin v. State,781 S.W.2d 710, 712

(Tex. App.—Texarkana 1989, pet. refd). It is significant to note that Trooper.Blue

offered Appellant the opportunity to provide a blood specimen when he determined

that a breath test was not available and that Appellant declined the opportunity.

The video recording from Trooper Blue's dashcam was introduced into

evidence. We have reviewed the video in our review of the record. We conclude

that the video supports Trooper Blue's trial testimony. Appellant's perception ofthe

video and his alleged physical problems were matters available for the trial court to

consider in determining Appellant's guilt/innocence. Under the applicable standard

of review, we presume that the factfinder resolved Appellant's perceived

deficiencies in the evidence in favor ofthe verdict, and we defer to that resolution.

Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We conclude that the

5
evidence is sufficient to support Appellant's conviction because a rational trier of

fact could have found the elements ofthe offense beyond a reasonable doubt based

upon Trooper Blue's testimony. We overrule Appellant's sole issue.

This Court's Ruling

We affirm the judgment ofthe trial court.

August 6, 2015

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

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

JOHN M. BAILEY

JUSTICE