Opinion issued November 30, 2023

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-22-00174-CR

———————————

OLAMIDE FEDAPO OGUNNOWO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 19-DCR-086413

MEMORANDUM OPINION

A jury convicted Appellant Olamide Fedapo Ogunnowo of the felony offense 

of driving while intoxicated. The trial court assessed his punishment at ten years’ 

confinement in the Texas Department of Criminal Justice—Institutional Division, 

suspended the sentence, and placed Ogunnowo on community supervision for ten 
2

years. In two issues, Ogunnowo argues on appeal there is insufficient evidence he 

(1) was intoxicated or (2) operated his vehicle while intoxicated. 

Viewing the evidence in the light most favorable to the verdict, we conclude 

the evidence is sufficient to support the jury’s finding that Ogunnowo committed the 

offense of driving while intoxicated. We affirm the trial court’s judgment. 

Background

Ogunnowo was indicted for the felony offense of driving while intoxicated. 

Nora Garcia and Deputy Raybon Hastedt, IV testified at his trial. 

A. Nora Garcia

On January 13, 2019, Fort Bend County Sheriff’s Office 9-1-1 dispatcher 

Nora Garcia received a call for service for an automobile accident located at the 

corner of Bissonnet Street and Dora Meadows Drive. The caller, who provided 

Garcia with her complete name and phone number, reported seeing a new BMW 

SUV that had driven over a curb and was parked near the fence. The caller told 

Garcia that the SUV’s engine was running and its lights were on. When asked if 

anyone was in the SUV, the caller told Garcia she saw no one in the SUV, but another 

person who stopped to help saw the SUV’s driver, who appeared to be asleep,

slumped over in the driver’s seat. The caller told Garcia she needed to get to work, 

but that the other person who had stopped to help would stay at the scene until the 

police arrived.
3

B. Deputy Raybon Hastedt, IV

FBCSO Deputy Raybon Hastedt, IV testified that he was dispatched to the

scene of the accident at 5:47 a.m. When he arrived at the scene, Deputy Hastedt saw

a blue BMW SUV. The front end of the SUV was on a sidewalk and the rear end 

was “still in the roadway.” After speaking to someone at the scene, Deputy Hastedt

approached the driver’s side of the SUV. Deputy Hastedt testified that Ogunnowo, 

the sole occupant, was asleep in the driver’s seat with his seat belt attached and he 

was slouched down and leaning back in the seat.

Deputy Hastedt testified that the SUV’s engine was running, and the 

transmission was in drive. Deputy Hastedt put the car in park and woke Ogunnowo

up. According to Deputy Hastedt, Ogunnowo’s speech was slow, and he

immediately detected the odor of an alcoholic beverage on his breath. Ogunnowo

told Deputy Hastedt that he was on his way home from a baby shower and he denied 

consuming any alcohol. Ogunnowo told Deputy Hastedt that he had left the baby 

shower at around 4 a.m. Ogunnowo told Deputy Hastedt that “he pulled over,” but

he never provided a definitive answer as to why the SUV was parked partially on 

the sidewalk with its rear still on the street. Ogunnowo told Deputy Hastedt that he 

believed he was somewhere near Highway 6, but he could not provide a cross street. 

Deputy Hastedt testified that Highway 6 was about a mile and a half from the scene 
4

of the accident. Ogunnowo told Deputy Hastedt he did not have his driver’s license 

with him. 

Based on the odor of alcohol on Ogunnowo’s breath and the way he was 

positioned in the SUV, Deputy Hastedt decided to conduct a DWI investigation. 

Deputy Hastedt testified that Ogunnowo did not fall or stumble when he got out of 

the SUV, and although he was “kind of off balance a little bit,” Ogunnowo was able 

to walk to the patrol car. Deputy Hastedt drove Ogunnowo to a side street where he

administered three field sobriety tests. 

Deputy Hastedt testified that he was certified to administer field sobriety tests 

after attending a three-day course in 2009 while in the training academy. According 

to Deputy Hastedt, the course instructors, who taught directly from the National 

Highway Traffic Safety Administration (“NHTSA”) manual, taught him and the 

other participants “how to understand, interpret, and administer field sobriety tests”

and identify intoxicated drivers. Deputy Hastedt testified he had conducted about 50 

to 75 DWI investigations during his law enforcement career. He conducted field 

sobriety tests (“FSTs”) during each of those investigations. 

The first FST Deputy Hastedt administered to Ogunnowo was the horizontal 

gaze nystagmus (“HGN”) test. Deputy Hastedt testified that “nystagmus is the 

uncontrollable jerking of the eye [that] naturally happens to everybody.” According 

to Deputy Halstead, a person’s nystagmus becomes more pronounced when they 
5

consume alcohol or depressants.1 Before administering the HGN test to Ogunnowo, 

Deputy Hastedt asked Ogunnowo if he had any medical conditions or head trauma 

because a person with head trauma or certain medical conditions is not a good 

candidate for the HGN test. Deputy Hastedt testified that Ogunnowo did not indicate 

he had any condition that would disqualify him from taking the HGN test.

Deputy Hastedt testified that the HGN test looks for six clues to indicate 

intoxication. He observed that Ogunnowo showed all six clues. According to 

Deputy Hastedt, four clues on the HGN test would have been enough to indicate 

intoxication. When asked if he observed any other signs of intoxication when he 

administered the HGN test to Ogunnowo, Deputy Halstead testified that Ogunnowo, 

who was standing directly in front of him, had “a slight sway to and from towards 

me and away from me.” During the HGN test, Deputy Hastedt repositioned

Ogunnowo due to the wind. Deputy Hastedt testified that the wind does not affect 

the quality of the HGN test. Deputy Halstead testified that based on Ogunnowo’s

performance on the HGN test, he believed Ogunnowo’s nystagmus was caused by

his consumption of alcohol. 

1 Deputy Halstead testified that there are several types of nystagmus, but the FST was 

designed to detect only a person’s horizontal gaze nystagmus. According to Deputy 

Halstead, horizontal gaze nystagmus can be caused by alcohol, depressants, drugs, 

medications, and certain medical conditions. 
6

Deputy Hastedt then administered the walk-and-turn test. According to 

Deputy Hastedt, Ogunnowo’s performance on the test suggested he was intoxicated. 

Deputy Hastedt testified that he looks for eight clues when administering the walkand-turn test, but he listed only seven clues: (1) inability to maintain balance when 

receiving instructions, (2) starting to walk before being instructed to do so, (3) 

stepping off the line, (4) improper number of steps, (5) turning incorrectly, (6) using

arms to balance, and (7) not walking heel to toe.

According to Deputy Hastedt, a person needs to exhibit only two of the eight

clues on the “walk-and-turn” test to indicate intoxication. He testified Ogunnowo

exhibited five clues. Ogunnowo was unable to balance during the instructional 

portion of the test, he started too soon, and he missed some heel-to-toe steps within 

a half inch of each other. He also exhibited other clues, but Deputy Hastedt said he 

would have to refer to his offense report to identify the clues. Deputy Hastedt 

testified that he reviewed the dash cam video and his offense report before trial, and 

there were some discrepancies between the video and his report with respect to the 

walk-and-turn test. 

According to Deputy Hastedt, two of the walk-and-turn test clues he included 

in his offense report were different from those depicted in the dash cam video. 

Deputy Hastedt testified the video showed only five clues, including balancing 

during the instructional phase, missing heel-to-toe steps, stepping off the line, 
7

improper turn, and starting the test too soon. He listed five clues in his report. But 

two of the clues listed in the report were not supported by the dash cam video, and 

the video supports two other clues not included in the report.2 Either way, Deputy 

Hastedt testified that Ogunnowo showed five clues of intoxication on the walk-andturn test.

Deputy Hastedt testified that during the FSTs, he allowed Ogunnowo to 

retrieve his jacket from his car because he was cold and shaking. Deputy Hastedt, 

who told Ogunnowo the cold would not affect his performance on the FSTs, testified 

that according to research, “field conditions” will not affect someone’s performance 

on an FST unless the conditions are extreme. Deputy Hastedt testified he was 

wearing a jacket and hat when he administered the FSTs to Ogunnowo, but he did 

not recall the temperature that night. Based on the dash cam video, Deputy Hastedt 

testified that he Ogunnowo exhibited five out of eight clues on the walk-and-turn 

test.

Deputy Hastedt also administered the one-leg-stand test. He explained there 

are a maximum of four clues on the one-leg-stand test and that the minimum number 

of clues necessary to indicate intoxication is two. Deputy Hastedt testified that 

although he stated in his offense report that Ogunnowo had shown all four clues of 

2 On cross-examination, Deputy Hastedt testified that his offense report incorrectly 

stated that Ogunnowo used his arm for balance and stopped walking during the test.
8

intoxication on the one-leg-stand test, after watching the dash cam video, he

determined Ogunnowo had shown only three clues total: swaying, using his arms for 

balance, and putting his foot down.

Based on his observations, including Ogunnowo’s performance of the FSTs, 

Deputy Hastedt arrested Ogunnowo for being intoxicated while driving a motor 

vehicle. Deputy Hastedt read Ogunnowo the statutory warnings included in the 

DIC-24 form.

3

 He asked Ogunnowo to submit to a breath or blood test, but 

Ogunnowo refused. The DIC-24 form was admitted into evidence as State Exhibit 

6. 

On cross examination, Deputy Hastedt testified that the DIC-23 form “is a 

sworn statement [that] has the information pertaining to . . . the offense report.” 

3 The DIC–24 statutory warning form is a standard Texas Department of Public 

Safety form containing warnings required to be read to individuals arrested for DWI 

offenses before a peace officer requests a voluntary blood or breath sample. 

Bonsignore v. State, 497 S.W.3d 563, 566 n.3 (Tex. App.—Fort Worth 2016, pet. 

ref’d); see TEX. TRANSP. CODE § 724.015.

The DIC-24 form states in part:

I am now requesting a specimen of your □ Breath □ Blood

□ Subject refused to allow the taking of a specimen and further refused 

to sign below as requested by this officer.

OR

□ Subject refused to allow the taking of a specimen as evidenced by his/her 

signature below.
9

Deputy Hastedt testified he did not complete the DIC-23 form the day he arrested 

Ogunnowo, and he acknowledged the report contains some mistakes.4

Among other mistakes, the DIC-23 form includes the wrong date and time of 

the alleged offense, and it incorrectly identifies the road on which he found 

Ogunnowo and the reasonable suspicion for the stop as “failure to maintain a single 

marked lane matched the description of a reckless driver on SH-332 East.”

Additionally, some of the intoxication signs listed in the probable cause for arrest or 

detention section of the DIC-23 are different from the signs of intoxication Deputy 

Hastedt included in his offense report. In the DIC-23 form, Deputy Hastedt reported 

that Ogunnowo had slurred speech and the odor of an unknown alcoholic beverage 

on his breath and person, but these signs of intoxication were not included in Deputy 

Hastedt’s offense report. Deputy Hastedt testified that Ogunnowo’s breath had the 

odor of alcohol, but not his person.

On the DIC-24 form admitted as State Exhibit 6, Deputy Hastedt reported that 

Ogunnowo refused to provide a specimen of his breath and he checked the box

indicating Ogunnowo had “refused to allow the taking of a specimen and further 

refused to sign below as requested by this officer.” Deputy Hastedt testified that he 

did not ask Ogunnowo to sign the form.

4 The marked DIC-23 form does not appear to have been admitted into evidence. 
10

Deputy Hastedt also testified that he revised his offense report after meeting 

with the prosecutor and watching the dash cam video. Deputy Hastedt testified that 

he incorrectly identified two of the clues of intoxication Ogunnowo exhibited on the 

walk-and-turn test as “used arm for balance” and “stopped once he begun the test.”

Based on the dash cam video, Deputy Hastedt testified that he incorrectly

demonstrated the walk-and-turn test to Ogunnowo because he did not count the three 

steps on the way back as required. 

Deputy Hastedt testified that there was a man standing near Ogunnowo’s SUV 

when he arrived. He spoke to the man briefly, but he did not get his name or ask 

him to give a written statement. Deputy Hastedt testified that the SUV was not 

damaged, he did not see Ogunnowo drive, or ask him if he had fallen asleep. And 

no witness reported seeing Ogunnowo driving or reported Ogunnowo for reckless 

driving.

5

 Deputy Hastedt testified that although he put the SUV into the park 

position, he did not believe he turned off the SUV’s engine. “He might have done 

that.”

Even though he could have done so, Deputy Hastedt did not get a warrant 

from a magistrate to have Ogunnowo’s blood drawn to test for alcohol. He testified 

5 The caller who called 9-1-1 on the day of incident reported seeing a new BMW 

SUV that had driven over a curb and was parked near the fence. The caller stated 

the SUV’s engine was running and its lights were on. 
11

Ogunnowo did not need help to get out of the SUV and he did not stumble or lose 

his balance walking from the SUV to Deputy Hastedt’s patrol car. 

Deputy Hastedt admitted that the NHTSA manual required him to remain as 

“motionless as possible” while Ogunnowo performed the walk-and-turn and oneleg-stand tests. Deputy Hastedt stated he “would have to watch the video to see” if 

he had remained standing in one place.

Deputy Hastedt testified Ogunnowo complained during the HGN test that the 

wind was blowing in his eyes. When asked if wind is a condition that may interfere 

with a person’s performance on the HGN test, Deputy Hastedt testified that “it might 

say so in the [NHTSA] manual,” but he did not believe that wind would necessarily 

interfere with performance on the HGN test based on validation studies he learned 

during his three-day DWI training class. Deputy Hastedt testified that wind:

could make it difficult for you to perform the test; but it’s not going to 

interfere with the nystagmus itself per se, if that makes sense. So 

nystagmus is still going to be there or not be there. But as far as your 

observations, you’ll still be able to see it.

When asked if the presence of wind could invalidate a HGN test, Deputy Hastedt 

testified:

the performance of the test is the person to actually keep their eyes open 

so that you can see the nystagmus. It doesn’t necessarily mean that it’s 

going to affect the nystagmus. It’s your observations. It’s how clear 

you’ll be able to observe it. It’ll still be there, though.
12

After the State rested, Ogunnowo moved for a directed verdict, which the trial court 

denied. Ogunnowo called no witnesses, and he presented no evidence to the jury. 

The jury returned a verdict of guilty for the felony offense of DWI. After 

conducting a punishment hearing, the trial court assessed Ogunnowo’s punishment 

at ten years, suspended the sentence, and ordered that Ogunnowo be placed on 

community supervision for a term of ten years. 

This appeal followed. 

Sufficiency of the Evidence

In two issues, Ogunnowo argues there is insufficient evidence that (1) he was 

intoxicated or (2) operated a motor vehicle while intoxicated. 

A. Standard of Review

We review an appellant’s challenge to the legal sufficiency of the evidence 

under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine the 

evidence in the light most favorable to the jury’s verdict to determine whether “any 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson, 443 U.S. at 319; Merritt v. State, 368 S.W.3d 516, 525 

(Tex. Crim. App. 2012). Our review includes all the evidence introduced, whether 

properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. 

Crim. App. 2013); see also Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 
13

2006) (“[A] reviewing court is permitted to consider all evidence in the trial-court 

record, whether admissible or inadmissible, when making a legal-sufficiency 

determination.”).

“The jury is the sole judge of credibility and weight to be attached to the 

testimony of witnesses.” Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at 

319). As the sole factfinder, the jury may reasonably infer facts from the evidence 

presented, credit the witnesses it chooses, disbelieve any or all of the evidence or 

testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 

S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). We afford almost 

complete deference to the jury’s determinations of credibility. See id. (citing Lancon

v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). In the event of conflicting 

evidence, we presume the jury resolved conflicts in favor of the verdict and defer to 

that determination. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); 

Canfield, 429 S.W.3d at 65. Circumstantial evidence is as probative as direct 

evidence in establishing guilt, and circumstantial evidence alone can be sufficient. 

See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

B. Applicable Law

A person commits the misdemeanor offense of DWI “if the person is 

intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE
14

§ 49.04(a). DWI is elevated to a third-degree felony if the person has previously

been convicted of DWI twice. Id. § 49.09(b)(2).

The Penal Code defines “intoxication” as either (1) “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,” known as the “impairment 

theory,” or (2) “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2). 

Evidence that a person is intoxicated because the person did not have “normal use 

of mental or physical faculties by reason of the introduction of alcohol” may be 

established through a lay witness’ testimony. See Annis v. State, 578 S.W.2d 406, 

407 (Tex. Crim. App. [Panel Op.] 1979) (holding law enforcement officer’s

testimony about his observations of defendant’s driving, physical appearance, postdriving behavior, and his conclusion of intoxication was sufficient); Zill v. State, 355 

S.W.3d 778, 785–86 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (stating “[t]he 

testimony of a police officer regarding the defendant’s behavior and the officer’s 

opinion that the defendant is intoxicated provides sufficient support to uphold a jury 

verdict”).

Evidence that supports an inference of intoxication includes a defendant’s 

inability to perform FSTs or follow directions, slurred speech, unsteady balance, and 

the odor of alcohol on the defendant’s breath. See Kirsch v. State, 306 S.W.3d 738 
15

(Tex. Crim. App. 2010) (stating evidence that supports inference of intoxication 

includes “all of the usual indicia of intoxication”); Zill, 355 S.W.3d at 785–86

(stating evidence of intoxication includes “slurred speech, bloodshot or glassy eyes, 

unsteady balance, a ‘staggering gait,’ and the odor of alcohol on the person or on her 

breath”). A defendant’s refusal to submit to a breath test or blood test may also 

support a finding of intoxication. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. 

Crim. App. 2008) (“Evidence of the [defendant]’s refusal to submit to a breath test 

is relevant [because] it tends to show a consciousness of guilt on his part.”).

Separate from evidence of intoxication, there must also be a temporal link 

between a defendant’s intoxication and his operation of a motor vehicle. Kuciemba 

v. State, 310 S.W.3d 460, 462 (Tex Crim. App. 2010) (stating “in order for the 

evidence to be sufficient to support a conviction for driving while intoxicated, there 

must be a temporal link between [a] defendant’s intoxication and his driving”). 

Although the Texas Penal Code does not define the term “operate,” the Court of 

Criminal Appeals has explained that, in a sufficiency review, “a person ‘operates’ a 

vehicle when ‘the totality of the circumstances [ ] demonstrate that the defendant 

took action to affect the functioning of his vehicle in a manner that would enable the 

vehicle’s use.’” Kirsch, 357 S.W.3d at 650–51 (quoting Denton v. State, 911 S.W.2d 

388, 390 (Tex. Crim. App. 1995)); Kinnett v. State, 623 S.W.3d 876, 898 (Tex. 

App.—Houston [1st Dist.] 2020, pet. ref’d) (stating term “operating” is interpreted 
16

broadly). Thus, “any action that is more than mere preparation toward operating the 

vehicle” constitutes “operation” of the vehicle, even if the actions fail. Smith v.

State, 401 S.W.3d 915, 919–20 (Tex. App.—Texarkana 2013, pet. ref’d) (“One can 

be operating a car without actually causing the vehicle to function.”).

While driving involves the operation of a motor vehicle, “operation does not 

necessarily involve driving.” Denton, 911 S.W.2d at 389. Indeed, this court and 

other Texas courts have upheld DWI convictions when the person found “operating 

a motor vehicle” was either asleep or unconscious in the vehicle. See White v. State, 

412 S.W.3d 125, 127, 129 (Tex. App.—Eastland 2013, no pet.) (holding there was 

sufficient evidence to show defendant was operating vehicle while intoxicated when 

defendant was found sitting in restaurant’s drive-through lane, “passed out” behind 

steering wheel of vehicle with engine running, transmission in drive, and brake lights 

illuminated); Dornbusch v. State, 262 S.W.3d 432, 433, 437–38 (Tex. App.—Fort 

Worth 2008, no pet.) (holding there was sufficient evidence to show defendant was 

operating vehicle while intoxicated when defendant was found either asleep or 

passed out in driver’s seat of car in restaurant’s parking lot with headlights on and 

engine running); Freeman v. State, 69 S.W.3d 374, 375–76 (Tex. App.—Dallas 

2002, no pet.) (holding there was sufficient evidence to show defendant had operated 

vehicle while intoxicated when defendant was found asleep in car “with its right

front tire against a curb, its motor running, the gear in the ‘drive’ position, and its
17

lights on”); Hearne v. State, 80 S.W.3d 677, 679–80 (Tex. App.—Houston [1st 

Dist.] 2002, no pet.) (holding there was sufficient circumstantial evidence to show 

defendant had operated vehicle while intoxicated when defendant was found asleep 

in driver’s seat of truck stopped in moving lane of traffic with its engine running); 

Milam v. State, 976 S.W.2d 788, 789 (Tex. App.—Houston [1st Dist.] 1998, pet. 

ref’d) (holding there was sufficient circumstantial evidence to show defendant had 

operated vehicle while intoxicated when defendant was found passed out in vehicle 

in parking lot, with engine running, vehicle in gear, and his foot on brake).

C. Evidence Ogunnowo was Intoxicated

Ogunnowo argues there is insufficient evidence he was intoxicated because

“the State showed no driving facts, and potential but unconfirmed operating facts, 

only the smell of alcohol on [Ogunnowo’s] breath, and FSTs performed contrary to 

recommendations in the NHTSA manual.” Ogunnowo also argues that Deputy 

Hastedt “should not have been allowed to testify about his observations and findings 

from his administration of the HGN test, and the HGN test should have been 

suppressed by the trial court.” Ogunnowo argues that Deputy Hastedt’s “failure to 

follow the standardized procedures outlined in the NHTSA manual should have 

invalidated all three FSTs.” Even assuming Deputy Hastedt’s testimony about the 

three FSTs was inadmissible, and Ogunnowo preserved the issue for appellate 

review, we may nevertheless consider this evidence for purposes of our sufficiency 
18

analysis. See Winfrey, 393 S.W.3d at 767 (stating for purposes of sufficiency 

analysis, courts consider all evidence admitted at trial, whether properly or 

improperly admitted).6 

Deputy Hastedt testified he was dispatched to the scene of an accident. When 

he arrived, he saw that an SUV had driven over a curb and was parked on a sidewalk, 

with the SUV’s rear end still in the roadway. According to Deputy Hastedt, 

Ogunnowo, the SUV’s sole occupant, was asleep and slouched over in the driver’s 

seat while wearing his seatbelt. The SUV’s engine was on, and the transmission was 

in drive. Deputy Hastedt testified that Ogunnowo’s speech was slow, and he 

immediately detected the odor of an alcoholic beverage on Ogunnowo’s breath. See

Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (stating that “odor 

of alcohol on the person” is evidence of intoxication). Deputy Hastedt testified that

although Ogunnowo was “kind of off balance a little bit,” he was able to walk to 

6 Appellant argues that “Hastedt was not qualified to administer the HGN test to 

Appellant in 2019” because Section 221.9(a)(4) of the Texas Administrative Code

requires that law enforcement officers must recertify every two years for HGN test 

administration, and Hastedt was last certified in 2009. According to Appellant, the 

trial court “should have suppressed any testimony from Hastedt about the HGN test 

and its results because of Hastedt’s failure to recertify for roughly 8 years after his 

certification expired.” Section 221.9(a)(4) of the Texas Administrative Code, 

however, was repealed in 2011, and is thus inapplicable to the present case. 

Moreover, this issue is not preserved because Ogunnowo did not raise this argument 

in the trial court. See TEX. R. APP. P. 33.1(a); see also Broxton v. State, 909 S.W.2d 

912, 918 (Tex. Crim. App. 1995) (appellate issue “must correspond to the objection

made at trial”).
19

Deputy Hastedt’s patrol car. See Kirsch, 306 S.W.3d at 738 (stating evidence of 

unsteady balance supports inference of intoxication).

Deputy Hastedt administered three FSTs to Ogunnowo: the HGN test, the 

walk-and-turn test, and the one-leg-stand test. According to Deputy Hastedt, a 

person needs to exhibit at least four of the six clues on the HGN test to indicate 

intoxication and Ogunnowo exhibited all six clues. A person needs to exhibit at least 

two of the eight clues on the “walk-and-turn” test to indicate intoxication and 

Ogunnowo exhibited five clues. A person needs to exhibit a minimum of two of the 

four clues of intoxication on the one-leg-stand test to indicate intoxication and 

Ogunnowo exhibited three clues. See id. (stating person’s inability to perform FSTs 

or follow directions supports inference of intoxication). Deputy Hastedt also

testified that after he arrested Ogunnowo for DWI, he asked Ogunnowo to submit to 

a breath test, and Ogunnowo refused. See Bartlett, 270 S.W.3d at 153 (“Evidence 

of the [defendant]’s refusal to submit to a breath test is relevant [because] it tends to 

show a consciousness of guilt on his part.”).

Appellant argues that Deputy Hastedt did not strictly follow the NHTSA

manual with respect to the administration of the three FSTs, such as when he failed

to count some of his steps when he was demonstrating the walk-and-turn test. 

Ogunnowo’s counsel, however, cross-examined Deputy Hastedt concerning his 

training and certification to administer FSTs, and the proper technique for 
20

administering such tests, and as the trier of fact, it was within the jury’s sole province 

to determine the weight to be given his testimony. See Canfield, 429 S.W.3d at 65

(stating that, as sole factfinder, jury may credit the witnesses it chooses, disbelieve 

any or all of the evidence or testimony proffered, and weigh evidence as it sees fit); 

see also Williams v. State, 525 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 

2017, pet. ref’d) (stating slight variations in administration of FSTs may affect 

weight to be given testimony but do not render evidence inadmissible or unreliable). 

Although Ogunnowo points to discrepancies between Deputy Hastedt’s testimony, 

the DIC-23 and DIC-24 forms he completed, and the dash cam video, it was the 

province of the jury to assess Deputy Hastedt’s credibility, determine the weight to 

give to his testimony, and resolve any conflicts in the evidence. We presume the 

jury resolved conflicts in favor of the verdict and we defer to that determination. 

Merritt, 368 S.W.3d at 525 (“The jury is the sole judge of credibility and weight to 

be attached to the testimony of witnesses.”).

After reviewing all the evidence in the light most favorable to the jury’s 

verdict, whether properly or improperly admitted, we conclude the jury could have 

found beyond a reasonable doubt that Ogunnowo was intoxicated. See Jackson, 443 

U.S. at 319; see also Winfrey, 393 S.W.3d at 767 (stating courts consider properly 

and improperly admitted evidence when conducting sufficiency analysis). 

We overrule Ogunnowo’s first issue.
21

D. Evidence Ogunnowo Operated a Motor Vehicle While Intoxicated

In his second issue, Ogunnowo argues the evidence is insufficient to establish 

he was operating the SUV while intoxicated because (1) no one saw him driving the 

SUV or reported seeing a vehicle matching the SUV’s description driving recklessly,

(2) there is no evidence he was “otherwise acting to operate the vehicle,” and (3) 

even if there is evidence he had been driving the SUV home from a baby shower, 

there is no evidence of how long the SUV was stopped on the curb before Deputy 

Hastedt arrived, and thus no evidence of a temporal link between his alleged 

intoxication and his operation of the SUV.

The State argues there is sufficient evidence that Ogunnowo was operating 

the SUV when Deputy Hastedt arrived because Deputy Hastedt found Ogunnowo 

asleep in the driver’s seat of the SUV while the SUV’s engine was running, and its 

transmission was in drive. The State further contends that Deputy Hastedt’s 

testimony about his contemporaneous observations and conclusions about 

Ogunnowo’s intoxication establish the temporal link between Ogunnowo’s 

intoxication and his operation of the SUV.

The 9-1-1 caller reported that an SUV had driven over a curb and was parked 

near the fence. The caller told the 9-1-1 dispatcher that the SUV’s engine was 

running, its lights were on, and the driver, who appeared to be asleep, was slumped 

over in the driver’s seat. Deputy Hastedt testified that when he arrived at the scene 
22

at 5:47 a.m., he saw an SUV that “had gone up and over the curb.” According to 

Deputy Hastedt, the SUV’s front end was on the sidewalk and “the back end of it 

was actually in the roadway.” Deputy Hastedt testified that Ogunnowo was asleep 

in the driver’s seat with his seat belt attached and he was slouched down and leaning 

back in the seat. The SUV’s engine was running, and the transmission was in drive. 

Deputy Hastedt testified that although he put the SUV’s transmission in park, he did 

not believe he turned off the SUV’s engine. Appellant was the sole occupant of the 

SUV, and no alcoholic substances or containers were found in the vicinity. Courts 

have upheld DWI convictions in similar circumstances. See Dornbusch, 262 S.W.3d 

at 433, 437–38 (holding there was sufficient circumstantial evidence to show 

defendant had operated vehicle while intoxicated when defendant was found asleep, 

“hunched over the steering wheel” in parking lot with headlights on and loud music 

playing and where “there was testimony indicating that the vehicle was not in park 

and that the only thing keeping the vehicle from moving was the curb”); Freeman, 

69 S.W.3d at 375–76 (holding there was sufficient circumstantial evidence to show 

defendant had operated vehicle while intoxicated when defendant was found asleep

in driver’s seat of vehicle, while vehicle’s wheel was “rest[ing] against the curb of a 

public street,” engine was running, gear was in “drive,” and lights were on).

Appellant relies on Texas Department of Public Safety v. Allocca to argue 

there is insufficient evidence he was “operating” the SUV while intoxicated. 301 
23

S.W.3d 364 (Tex. App.—Austin 2009, pet. denied). But the facts in Allocca are 

distinguishable. In Allocca, the defendant was arrested and charged with DWI after 

police, who had been dispatched to investigate a suspicious vehicle, found the 

defendant sleeping in his car parked in a Jiffy Lube parking lot. Id. at 366. The 

defendant, who worked at Jiffy Lube, testified he left his vehicle parked behind the 

store when he went drinking with friends after work. Id. When hisfriend’s girlfriend 

dropped him off at the Jiffy Lube later that evening, the defendant recognized he 

should not drive and decided to sleep in his car. Id. The driver’s seat was reclined, 

the defendant’s feet were on the floorboard, the vehicle was in park and the 

headlights were off. Id. Although the car was not running when the defendant 

initially went to sleep, the defendant woke up and turned the engine on because he 

was hot and wanted to use the air conditioning. Id. The court of appeals held that 

the police officer did not have probable cause to believe Allocca was operating or 

had operated his vehicle while intoxicated when Allocca’s car was “not stopped in 

the middle of a roadway or in a moving lane of traffic,” his foot was not on brake, 

car’s headlights were not on, car was in park, and driver’s seat was “reclined to better 

accommodate sleeping.” Id. at 368–70.

Unlike in Allocca, Appellant’s SUV was not legally parked, the SUV’s 

transmission was in drive, its lights were on, and its back end was on the roadway. 

While Ogunnowo was asleep in the driver’s seat, the seat was not reclined. 
24

Ogunnowo was slouched over with his seatbelt on, and he had no explanation for 

why he was asleep in the SUV or why half the SUV was in the curb and the other on 

the road.

7

Viewing the evidence in the light most favorable to the verdict, the totality of 

the circumstances supports an inference that Ogunnowo operated the SUV while 

intoxicated, and thus, the evidence is sufficient to support the jury’s finding that 

Appellant committed the offense of driving while intoxicated. See Jackson, 443 

U.S. at 319; Denton, 911 S.W.2d at 390.

We overrule Ogunnowo’s second issue.

Conclusion

We affirm the trial court’s judgment. 

Veronica Rivas-Molloy

Justice 

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.

Do Not Publish. TEX. R. APP. P. 47.2(b).

7 Cf. State v. Espinosa, 666 S.W.3d 659, 669 (Tex. Crim. App. 2023) (holding officer 

had probable cause to believe defendant was operating vehicle while intoxicated 

and stating “[t]his Court has never adopted the court of appeals’ reasoning [in

Allocca], and it is distinguishable”).