Opinion filed August 6, 2015



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 13

- 00238

- C R

__________ 

### JASON VERNOY KIRKPAT RICK , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law

Ector County, Texas Trial Court Cause No. 12

- 2759

M E M O R A N D U M O P I N I O N Jason Vernoy Kirkpatrick appeals his conviction for the offense of driving
while intoxicated. See T EX

. P ENAL C ODE A NN

. § 49.04(a) (West Supp. 2014 ). The trial court sentenced Appellant to confinement in the Ector Coun ty Jail for a term of 180 days . The trial court also suspen ded his driver’s license for 180 days and
assessed court costs against him

. In one issue on appeal, Appellant challenges the

su fficiency of the evidence to support his conviction. We affirm.2 Background Facts Officer Jorge Amezola of the Odessa Police Department testified that at 11:00

p.m. on July 31, 2012
, he saw a m an on a moped run a stop sign. Officer Amezola
turned around and followed the moped. Officer Amezola th e n saw the moped driver run a red light. He stopped the mop ed driver for the traffic violations. Appellant
was identified as t he man driving the moped. Officer Amezola approached Appellant and observed t hat Appellant “had bloodshot eyes and a strong odor of alcohol .” Officer Amezola asked Appellant if he would per form any field sobriety tests. Appellant consented to the tests. Appellant first performed the h orizontal g aze n ystagmus (HGN) test. Officer Amezola testified that Appellant showed six of six possible clues for intoxication on the HGN test

. Appellant next performed the w alk

- and

- t urn field sobriety test. Officer Amezola observed that Appellant showed five out of eight po ssible clues for
intoxication. Finally, Appellant performed the one

- leg s tand field sobriety test. Officer Amezola testified that Appellant also failed this test. After the field sobriety tests, Officer Amezola determined that Appellant was too intoxicated to drive. Af ter receiving the required statutory warning, Appellant refused Officer Amezola’s request to submit a breath specimen for testing. See T EX

. T RANS P

. C ODE A NN

. § 724.015 ( West Supp. 2014 ). Officer Amezola then arrested Appellant for driving while intoxicated. Analysis In his sole issue, Appellant challenges the sufficiency of the evide nce to support his conviction. We review a sufficiency of the evidence issue under the
standard of review set forth in Jackson v. Virginia , 443 U.S. 307 (1979). Bro oks 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. ref ’ d). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine3

wheth er any rational trier of fact could have found the elements of the 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); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In conducting a sufficiency review, we defer t o 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 stand ard accounts for the fac tfinder’ 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 p resume 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.” P ENAL § 49.04(a)

. Appellant only attacks the element of intoxication

. Under the Texas DWI statute,
intoxication m ay 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. I

d. P ENAL § 49.01(2) (West 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 Appellant did not provide a specimen for testing. For purposes of the DWI statute, proving an exact intoxicant
is not an element of the offense. Gray v. State , 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). Circumstantial evidence may prove that a person has lost the normal use of his mental or physical faculties by reason of introduction of a controlled4

substance or drug into his body. See Smithhart v. State , 503 S.W.2d 283, 284 (Tex.
Crim. App. 1973). App ellant contends that the State’s evidence was deficient in a number of respects. He contends that there was no evidence from a third party or an admission by Appellant indicating that that had consumed any alcohol. Appellant argues that
“the State’ s enti re case boiled down to Officer Amezola’s testimony.” He faults the testimony given by Officer Amezola based on his contention that the officer was inexperienced and that he had a predisposition in favor of pr osecuting individuals
for DWI. He also faults the officer for failing to preserve the video record ing of Appellant’s performanc e on the field sobriety tests.
Officer Amezola testified that he saw Appellant run a stop sign.
Officer Amezola followed Appellant and th en saw him run a red light.
Offic er Amezola stopped Appellant and immediately observed that Appellant “had bloodshot eyes and a strong odor of alcohol bev erage coming from his person.” Appellant then perform ed three field sobriety tests. Despite Appellant’s contention
that Officer Amezo la was inexperienced, the officer testified that he had investigated “many” DWI cases. He also testified that he was certified to perform all three of the
field sobrie ty tests that he administered. Officer Amezola testified that App ellant failed all thre e tests. Based on his
observations , Officer Amezola concluded that Appellant was intoxicated wh ile operating a motor vehicle. Officer Amezola’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
of DW I) ; Kiffe v. State , 361 S.W.3d 104, 108 (Tex. App.

— Houston [1st Dist.] 2011, pet. ref’d) (same) ; Henderson v. State , 29 S.W.3d 616, 622 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref’d) (same)

.5

The applicable standard of review requires us to v iew the evidence in the light
most favorable to the verdict

. Clayton , 235 S.W.3d at 778 . We presume that the factfinder resolved Appellant’s perceived deficiencies in the evidence in favor of the
verdict
, and we defer to that resolution. Jackson , 443 U.S. at 326; Clayton , 235
S.W.3d at 778. W e conclude that the evidence is sufficient to s upport Appellant’s
conviction because a rational trier of fact could have found the elements of the offense beyond a reasonable doubt based upon Officer Amezola’s testimony

. We overrule Appellant’s sole issue. This Court’s Ruling We affirm the judgment of the trial court.

JOHN M. BAILEY
JUSTICE

August 6, 2015 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.