C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

AL YSHA SMI TH AKA: AL I CI A SMI TH Ap pe lla nt, V. TH E ST AT E O F TE XA S, Appellee
. § § § § § § § No . 0 8- 10 -0 01 47 -C R

Appea l from the County Criminal Court No. Two of El Pa so County , T e xas (TC# 20090C08139)

O P I N I O N Ap pe lla nt a pp e a ls h e r c onvic tio n f

or the of fe ns e of dr ivi ngwh ile int oxic a te d. On a pp e a l, Appellant complains ther e is insufficient e vidence to support her c onviction, and that the trial
c ourt e rr e d in re fu sin g to gra

nt h e r m oti on

fo r d ir e c te d v e rd ic t on

the g ro un ds tha

t th e e vid e nc e is le g a lly ins uf fi c ie nt. We a ff

ir m. On J uly 7, 2009, Deputies Joel Padill a and Ce sar Par edes w ere conductingtraff ic control at the sce ne of a

motor vehicle a ccide nt when they saw Appe llant’s vehicle pa ss by their location. As Deputy

Padilla “[waved] the vehicles through,” Appe llant’s vehicle c aug ht his attention beca use it slowed down, and A ppellant rolled down he r window, de spite the deputy ’s demand f or he r t o k e e p g oin g . A ft e r A pp e lla nt’ s v e hic le de pa

rt e d th e sit e , th e tw o d e putie s c on tin ue d to conduct tra ffic c ontrol, and while wa iting for a wr ecke r to pick up the ve hicle involved in the
acc ident, they

rec eived a

nother dispatch c all, which indicate d that there was a stalled vehicle atThe 400 block of East Vinton was a

pproxi mately

a half mile away

from the motor 1 vehicle a ccide nt site. -2- the 400 block of Ea st Vinton. When Deputy Padilla arrive d at East Vinton, he obse rved 1 Appellant’s ve hicle in the middle of the r oad, “of f to its side.” Upon ar

riving at the sce ne, the fi re of fi c e r o n s ite re late d to De puty Pa dil la wh a t he ha d o bs e rv e d, and the n D e puty

Pa dil la approa ched A

ppellant’s vehic le from the dr iver’s side, where as De puty Parede s approa ched the passeng er’ s side. When Deputy Padilla asked Appe llant what was wrong , she answe red that her boy friend ha d g rabbe d the vehicle ’s whee l, and had r emoved the ke y s from the ve hicle’s ig nition. Once Deputies Padilla and Par edes be g an talkingto Appellant, they noticed a strongodor of alcohol emitting f

rom her br eath a

nd person, that Appe llant’s speec h was slurre d, and that she had re d, bloodshot ey es. B ased on A ppellant’s stateme nt, the deputies identified the pa sseng er inside her ve hicle as he r boy friend, who was hig hly intox icated, ha d vomited all over himself, and wa s passed out. Upon a sking A ppellant whethe r she ha d been dr inking, she replied, “ y es,” and then De puty

Padilla asked he r to step outside of her vehicle. A s she exited the vehicle, she was not able to maintain her ba lance , and almost fell down, so De puty Padilla had to g rab he r upper r ight a

rm to steady

her. The deputy

then esc orted Appe llant to the rea r of he r vehic le, and he obser ved Appe llant stag g er a s she walke d to the back of it. W hen Appe llant rea ched the back of the ve hicle, De puty

Padilla asked he r to put her ha nds on the trunk, and infor med her that she was be ing a

rre sted for dr iving while intoxicated. Afte r De puty Padilla placed ha

ndcuff s on Appellant and sta

rted e scortingher to his patrol unit, Appellant be g an using forc e to pull away fr om h im, and

be c ame be lli g e re nt a

nd a g g re ssi ve tow ard s h im. Se ve ra l of fi c e rs he lpe d D e puty Padilla place A

ppellant inside his patrol unit, but Appellant continued to resist. Appellant yelled-3-

profa nities at the offic ers, a

nd attempted to kick, bite, and spit at them. While inside the patrol unit, Appellant kicked the door s and windows, and so the office rs dec ided to take he r out for f ear that she would hurt her self or da mag e the unit. The of

fice rs eve ntually

car ried Appe llant to the
near est police station bec ause she ref used to walk on he r own, a nd they place d Appellant inside a holding c ell there
. The infor mation char g ed Appe llant with the Class B misdemeanor offe nse of “ DRI VI

NG WHI L E I NTOXI CATED,” a

nd stated that “O N OR AB OUT THE 7TH DAYOF JUL Y, 2009 . . . DEF ENDAN T, WHI L E OPERATI NG A MOTO R VEHI CL E I N A PUB L I C PL ACE, WAS I NTOXI CATED TO WI T: BY N OT HAV I NG THE N ORMALUSE OF MEN TAL AND PHYSI CALFACUL TI ES BY REASON OF THE I NTRODUCTI ON OF AL COHOL I NTO THE B ODY.” At the conc lusion of trial, the jury convicted A

ppellant of the c harg ed off ense,
and a sse sse d h e r p un ishme nt at im pr iso nme nt i n th e County Jail fo r a pe ri od of thi rt y da y s, probate d for two year s, and a f ine of $500. Appe llant subsequently appea led the judg ment and sentenc e. In I ssue One, A

ppellant ar g ues the e vidence is leg ally insufficient to support her
c onvic tio n f

or dr ivi ngwh ile int oxic a te d. In I ssu e Tw o, Ap pe lla nt a rgue s th e e vid e nc e is fac tually insufficient to support her conviction for dr iving while intoxicated. Howe ver, since Appellant’s br ief wa s filed, the Te x as Court of Criminal Appea ls has ruled that the only standard applicable to determine whether the evidenc e is sufficie nt to support each e lement of a criminal offe nse is the J

ac k so n v . V irg ini a leg al suffic iency

standard. Se e Br oo k

s v . S tate , 323 S.W .3d 893, 895 (Tex.Crim.App. 2010)(holding that “the J ac k so n v . V irg ini a leg al-suff

iciency standard is the on ly

sta nd ard that a re vie wi ngc ourt

sh ou ld a pp ly in d e te rm ini ngwh e the r t he e vid e nc e is-4-

sufficie nt to support each e lement of a criminal off

ense . . . .” ). Ther efor e, in the intere sts of justice, and in lig ht of the Br oo k s decision, we will construe I ssue Two a s a cha lleng e to the leg al sufficie ncy

of the e vidence
. Se e id . In I ssu e Thre e , App e lla nt a rgue s th e tr ia l c ourt

e rr e d in denying he r motion for instructed ve rdict on the g rounds that the evide nce is leg ally insufficient t o s u p p o rth e r c o n v i c t i o nf

o r dr i v i n g w h i l e i n t o x i c a t e d
. Ap p e l l an t ’ s th i r d i s s u e i s i nr e a l i ty a
c ha lle ng e to t

he le g a l su ff

ic ie nc y of the e vid e nc e su

pp or tin g he r c on vic tio n, and

so we wi ll a

pp ly the standar d of re view applica ble to a leg al suffic iency

challeng e. Se e Ho

pp e r v . S tate , 86 S.W .3d 676, 678 (Tex.App.--El Paso 2002, no pet.) . Be cause all three issues Appellant ra ises are based on a

leg al suffic iency

analy sis, we will addre ss all of the issues tog ether
. A leg al suffic iency

revie w re quires the a

ppellate c ourt to determine whether ,

“ [c]o ns ide ri nga ll o f t

he e vid e nc e in t

he lig ht m os t f

avo ra ble to t he ve rd ic t, w a s a

jur y ra tio na lly justified in finding guilt bey ond a re asonable doubt.” Id . at 899, c iti ng J ac k so n v . V irg ini a , 443 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9, 61 L .E d. 2d 56 0 ( 19 79 ). In c on du c tin g thi s r e vie w, we mus t defe r to the jury ’s role a s the sole judg e of the cre dibilit y and we ight that testimony is to be aff orded. Id . at 899. On a pp e a l, A pp e lla nt d oe s n ot d isp ute tha

t th e State fa ile d to pr ov e any e le me nts to support a convic tion for DWI , except for the e lement of drivingwhile intox icated. A ppellant cites to Mc Caf

fe rty v . S tate , 7 48 S.W. 2d

48 9 ( Te x.Ap p. -- Ho us ton [1st Di st. ] 198 8, no pe t.) , to support her a

rgument that “an a ccuse d havingbeen intoxicated at the time the police arr ived does not in its elf prove such intox ication at the pr ohibited time, i.e, when the a ccuse d was driving .” Ap pe lla nt c la ims that Mc Caf

fe rty “held that pr oof that amounts only to a strongsuspicion or
mere probability

in [ sic] ins ufficie nt. I n both direct a nd circ umstantial cases the standard of-5-

re vie w i s w he the r a

ny ratio na l tr ie r o f f

a c t c ou ld h ave fo un d th e e sse nti a l e le me nts of the c ri me beyond a re asonable doubt.” We first note that the F irst Court of Appea ls in Mc Caf fe rty employ ed the “ rea sonable hy pothesis” ana ly

tical construc t in that case in c oncluding that there was insuffic ient evidenc e to support the def endant’ s DWIconviction, but this construct no long er
a p p l i e s b e c a

u s e i th a s b e e na

b r o g a t e d b y Ge esa v . S

tate , 820 S.W .2d 154, 160-61(Te x .Crim.App. 1991). The State is no long er r equire d to neg ate e very rea sonable hy

pothesis other than the one
e sta bli sh inga de fe nd ant’ s guil t, a

nd is r e qu ir e d o nly

to e sta bli shtha t guil t be y on d a

re a so na ble doubt. Ge esa , 820 S.W .2d at 155. Fur thermore , appellate courts now a pply the same le g al sufficie ncy

analy sis to cases prove d by either c ircumstantial or dire ct evidenc e, and a conviction can be supported entire ly

by circ umstantial evidence
. Se e Ge esa , 820 S.W .2d at 160-61. A p e rs on c omm its an o ff

e ns e of dr ivi ngwh ile int oxic a te d if sh e is i nto xicate d w hil e operating a

motor vehicle in a

public place . T EX .P EN .C ODE ANN . § 49.04(a) (West 2011). Such an off ense is a Class B misdemeanor, w ith a minimum confine ment term of 72 hour s. Id . at § 49.04(b). F or evide nce to be sufficie nt to support a conviction for dr iving while intoxicated, there must be a tempora l link between the de fenda nt’s intox ication and he r driving
. Kuciemba v

. Sta te , 310 S.W .3d 460, 462 (Tex.Crim.App. 2010). Howeve r, a c onviction can be supported solely by circ umstantial evidence
. Id . at 462. In Kuciemba , the evidenc e esta blished the offic er
arr ive d at th e a c c ide nt s c e ne fi ft e e n to tw e nty min ute s a ft e r r e c e ivi nga

re po rt that a mot or c y c le had bee n observe d in the ditch by a passingmotorist. Id . at 462. The of fice r first obser

ved the defe ndant lying in the ditch ne x t to his m otorcycle, a nd the def

endant pr ocee ded to tell the offic er that he had be en oper ating the motorcycle on the c ounty road immediate ly

prior to losing c ontrol and landingin the ditch. Kuciemba , 310 S.W .3d at 462. The of fice r also obser

ved the-6-

defe ndant’s sy

mptoms of intox ication upon first enc ounteringhim. Id . at 462. In that case , there
was no e vidence of other pe rsons, liquor, or liquor containe rs in the ar ea where the offic er f ound the def endant, or any other e vidence to support an infer ence that the def endant ha d the means or opportunity

of ing esting alcohol fr om the time he lost control of the motorcycle until the offic er found him ly ing be side it in the ditch. Id . at 462-63. Reve rsing the lower court’s de cision that there was leg ally

insufficient e vidence to support the defe ndant’s DWIconviction in Kuciemba , the Court of Cr imi na l App e a ls i nd ic a te d: “ B e ingint oxic a te d at th e sc e ne of a tr a ff ic a c c ide nt i n which the a ctor wa s a driver is some circumstantial evide nce that the actor ’s intox ication ca used the ac cident . . . .” Id . at 462. The Court of Criminal Appe als also indicated that although the State did not offer

any evidenc e to exclude the possibility that the def

endant ha d inge sted alcohol fr om t he tim e he los t c on tr ol o f t he mot or c y c le un til the of fi c e r f ound him in t he dit c h, the State did not have to disprove e very theore tical hy

pothesis besides guilt to m eet its burden of proving g uilty beyond a re asonable doubt. Id . at 463. The Court c ontinues: “In this case, it ca n
rea sonably

be infe rre d that the deputy found B lackman where he had c ome to rest af ter losing control of his motorcycle a nd that Bla ckman’ s state of intox ication at that time exist ed whe n he last operated the motorcycle on the c ounty road.” Id . at 463. B ased on this rationale among others, the Court of Criminal Appe als reve rsed the c ourt of appe als’ judg ment. Id . at 463. In this case, the two de puties first observe d Appellant drivinga white ve hicle at a very low sp e e d p a st the sit e wh e re the mot or ve hic le a c c ide nt o c c ur

re d, and the y ha d to te ll h e r t o move on a f

ew times. The de puties were then dispatche d to the 400 block of Ea st Vinton for a repor ted traf fic ha zard, and whe n they arr ived, they

saw the same white vehic le in the middle of the ro a d, “ of

f t o it s si de .” Ap pr oximate ly thi rt e e n to fi ft e e n mi nute s h a d g on e by fr om t he tim e-7-

the de putie s o bs e rv e d App e lla nt d ri vin g by the a c c ide nt s c e ne to t

he ir e nc ounte r w ithhe r o n E a st Vinton. Duringthis second enc ounter, the of fice rs found Appe llant in the driver’ s seat, and she related to Deputy

Padilla that her boy friend, a passeng er in the ve hicle, had grabbe d the whee l and take n the key

from the ve hicle’s ig nition. Both deputies testified that they observe d sy mptoms of Appellant’s intox ication, includinga strongodor of a lcohol emanating f rom her breath and per son, her r ed, bloodshot ey es, and he r slurre d speec h. Upon askingAppellant whether she had be en drinking , she re plied, “y es,” a nd then Deputy

Padilla asked he r to step outside of her

vehicle. A s she exited the vehicle, she was not able to maintain her ba lance , and
a lmo st f e ll d ow n, so De puty

Pa dil la ha d to g ra

b h e r u pp e r r ig ht a

rm to s te a dy he r. De puty Parede s testified that Appellant wa lked to the re ar of the vehicle , “but she wa s stumbli ng . She couldn’t maintain her

balanc e.” Mor eover , Deputy Padilla testified that he did not observe any
a lc oh oli c c on ta ine rs in A

pp e lla nt’ s v e hic le that ni g ht. On appe al, Appellant doe s not contest that she wa s intox icated when the of fice rs found her on Ea st Vinton, but she argues that there was no e vidence indicating she wa s intox icated when she was drivingpast the ac cident sce ne duringher f irst encounter

with the deputies. Howeve r, Appe llant’s state of intoxi cation duringher se cond enc ounter with the de puties, where her pa rked c ar c reated a tra ffic ha zard on a public roa dway , constitutes some circumstantial
e vid e nc e that he r s tate of

int oxic a tio n c omb ine d w ithhe r o pe ratio n o f t he mot or ve hic le le d to this hazard. See Kuc iemba , 310 S.W .3d at 462. Moreove r, a me re thirtee n to fifteen minutes ha d passed be tween he r first and se cond enc ounter with the de puties, which supports a f inding of a temporal link. Se e Ke e na n v . S tate , 700 S.W .2d 12, 14 (Tex.App.--Ama rillo 1985, no pe t.) (h old ingthat jury

re a so na bly c on c lud e d th a t de fe nd ant w a s guil ty of dr ivi ngwh ile-8-

intox icated where there was a small tim e lapse betwee n the first sig hting of defe ndant behind the whee l of his vehicle with eng ine runningand the se cond sig hting whe n he wa s found intox icated in his vehicle). Contrar

y to Appellant’s ar g ument that proof amounting only to a strong
su sp ic ion or me re pr ob a

bil ity is i ns uf fi c ie nt, the Court

of Cr imi na l App e a ls h a s in dic a te d th a t it

“ [doe s] no t r e g ard

the State ’s burd e n o f p ro vin g g uil t be y on d a re a so na ble do ub t a s r e qu ir ingit t o disprove eve ry

theore tical hy

pothesis other than guilt.” Kuciemba , 310 S.W .3d at 463. As such, in meeting its burden of proof , the State did not have to off er a ny evidenc e to exclude the possibili ty

that Appellant had ing ested a lcohol betwee n the time the deputies fir st observed Appellant drivingthe vehicle to the time they encounte red he r in an intox icated state in the parke d vehicle. T he jury

could have rea sonably

inferr ed that Appe llant drove fr om the acc ident
scene to the 400 block of Ea st Vinton, where he r vehic le stalled, and that she was in a state of intox ication when she last operated the vehic le on the public roa d. Viewingthe evidenc e in the light most favor able to the ve rdict, we conclude that the evidenc e in this case is leg ally sufficie nt to support the conviction. We also hold that the trial cour t did not err in deny

ing A ppellant’s mot ion fo r d ir e c te d v e rd ic t. A c c or din g ly , w e ov e rr ule a ll o f A

pp e lla nt’ s is su e s. The trial c ourt ce rtified Appe llant’s rig ht to appeal in this case , but the cer tification does
no t be ar A

pp e lla nt’ s si g natur e ind ic a tin g tha t sh e wa s in fo rm e d o f h e r r ig hts to a pp e a l and to f ile
a pr o s e petition for discre tionary revie w with the Texas Court of Criminal Appeals. See T EX .R.A PP .P. 25.2(d). The c ertifica tion is defective, a

nd has not bee n corr ecte d by Appellant’s
a t t o r n e y o r th e tr i a l c o urt . T o r e m e dy th i s d e f e c t , th i s C o urtO R D E R S Ap p e l l an t ’ s a t t o r n e y, pursuant to T EX .R.A PP .P. 48.4, to send Appellant a c opy of this opinion and this C ourt’s judgme nt, to notify

Appellant of he r rig ht to file a pr o s e pe tit ion fo r d isc re tio na

ry re vie w, and

to-9-

inform Appellant of

the applica

ble dea dlines. SeeT EX .R.A PP .P. 48.4, 68. Appellant’s attorne y is further O RDERED to comply with all of the re quirements of T EX .R.A PP .P. 48.4. Havingoverr

uled Appellant’ s issues presente d for r eview, w e af firm the trial c ourt’s jud g me nt.
September 28, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice B e f o r e C h e w , C
. J. , M c C l ur e , a n d R i v e r a , JJ. (Do Not Publish)