# //66-I5 ORIGINAL

COURTOFCRIMB^ALAPPEALS 

### 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 COURTOFCRIMINALAPPEALS 

### OCT 23 2015 Abel Acosta, ClerkLIST 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)



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# cases v-^ OpWft*<aWVW<**«* 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.

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### I» THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT'S VERDICT AND SENTENCE.



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# 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 courthas inspectedthe record in this cause and concludes thatthere is no error in thejudgmentbelow. Therefore, in accordance with this court's 

### opinion, thejudgment ofthe trial court is in all things affirmed.



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Petitioner's printed name:; 

### Stateb#;numb(^,/if.dppUciable: Address:

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Fax: liNMAWS DE€XARAf ION


### ^-^•^^^^^ v^>V^^K-^..---..: >.& theiaj|plicant/^titioner(circleone)and beingpresentlyincarceratedin \\^Yx\ ~\L.Q\\ teNjv ^y^\\ ,declareunderpenaltyof perjurythat, according to mybeliefthe facts stated in theaboveapplicationare true andcpifect. 

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<m*rUwMPETITIONER'S INFORMATION Petitioner'sprinted name: *

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Telephoned fax: .___ Signed oh

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Signature ofPetitioner

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

acoaacOIn The 

# Clebentli Court ofAppeals;

No. 11-13-00241-CR


### JAMES EDWARD SHAWJR., Appellant V. 

### THE STATE OF TEXAS, Appellee
On Appealfrom 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 offorty years and a fine of $10,000. In one issue on appeal,Appellant challenges the sufficiency ofthe evidence to support his conviction. We affirm. BackgroundFacts Trooper Burt Blue ofthe Texas Department ofPublic Safety testified that he 

### saw Appellant driving a vehicle after dark without the taillights activated. When Trooper Blue stopped Appellant, he smelled "the odor ofalcohol coming from the 

### truck." Appellant stepped out ofthe vehicle, and TrooperBlue noticed that he had bloodshot eyes and that his speech was "real thick-tongued and slurred." Trooper Blue asked Appellantifhe had had anything to drink, andAppellant 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 ofeight possible clues for intoxication. Appellant then attempted the one-leg stand test. Appellant displayed three out offourpossible 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 hisbriefthat the evidence was legally sufficient. We review a sufficiency ofthe evidence issue, regardless of
2whether it is denominated as a legal or factual claim, under the standard ofreview 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 ofAppellant'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 ofthe evidence in the light most 

### favorable to the verdict and determine whether any rational trier offact could have found the elements ofthe offense beyond areasonable 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 ofevidence 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 solejudge ofthe 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 ofthe prosecution and deferto that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 

### A person commits the offense ofdriving while intoxicated "ifthe 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. Underthe 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 of0.08 or more. Id. § 49.01(2) (West
32011); 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 ofintroduction ofa 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. Grayv. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). 

### Appellantpremises his evidentiary challengeto the elementofintoxication on anumber ofarguments. He initially contends that the malfunction ofthe intoxilyzer 

### testing machine deprived himofthe opportunity to disprove that he was intoxicated. He also asserts that he informed Trooper Blue that he had back problems and a 

### speech impedimentand that these conditions provided anexplanationfor the matters that Trooper Blue observed about his physical condition. Appellant additionally contends thatthe video recording ofhis encounterwith TrooperBlue 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 ofalcohol 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 Appellantifhe had had anything to drink, andAppellant 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 attendedan advancedDWI class and that he is also certified as adrug recognition
4expert. 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 ofintoxication for the offense ofDWI); Kiffev. 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 ofthe 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 determiningAppellant'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 TrooperBlue's testimony. We overrule Appellant's sole issue. This Court's Ruling We affirm thejudgment 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