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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,092

5 RANDALL GUTIERREZ,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Stan Whitaker, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM 

11 for Appellee

12 Law Offices of Jennifer J. Wernersbach, P.C.

13 Jennifer J. Wernersbach

14 Albuquerque, NM 

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Chief Judge.

18 {1} Defendant appeals from the district court’s judgment and sentence entered

19 pursuant to a jury verdict that convicted him for aggravated DWI failure to maintain
2

1 traffic lane. Unpersuaded that Defendant’s docketing statement demonstrated error,

2 we issued a notice of proposed summary disposition, proposing to affirm. Defendant

3 has filed a memorandum in opposition, which we have duly considered. We remain

4 unpersuaded that the district court erred. We affirm.

5 {2} On appeal, Defendant challenges the sufficiency of the evidence to support his

6 convictions for failure to maintain a single traffic lane and aggravated DWI, the latter

7 of which was based on Defendant having been impaired to the slightest degree while

8 driving and having refused chemical testing. [DS unnumbered 3; RP 48, 50; MIO 1]

9 This appeal has been pursued under State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M.

10 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712

11 P.2d 1. [DS unnumbered 4; MIO 3-4] Our notice proposed to summarily affirm on the

12 basis of the facts supplied by the docketing statement, which indicated that evidence

13 was presented that Defendant had failed to maintain his traffic lane, smelled of

14 alcohol, showed clues of intoxication in his performance of the field sobriety tests,

15 and refused a breath test. [DS unnumbered 3; CN 3] Our notice observed that the

16 docketing statement did not state which elements of the offenses were not met by the

17 evidence recounted therein. [CN 3-4] Viewing that evidence in the light most

18 favorable to the verdict, we proposed to hold that it was sufficient to establish the facts

19 required to convict Defendant. See, e.g., State v. Neal, 2008-NMCA-008, ¶¶ 4-5, 29,

20 143 N.M. 341, 176 P.3d 330 (holding that the evidence was sufficient to support the
3

1 defendant’s DWI conviction where he was driving under the speed limit and over the

2 shoulder line of the road, smelled of alcohol, had bloodshot, watery eyes, admitted to

3 drinking, performed poorly on the field sobriety tests, and did not agree to chemical

4 testing, stating that he did not want a DWI on his record, supporting an inference of

5 consciousness of guilt). [CN 4]

6 {3} In response to our notice, the memorandum in opposition asserts that trial

7 counsel is unable to recall any additional details about the evidence presented and

8 requests that we assign the case to the general calendar for a more thorough factual

9 development. [MIO 3] To be clear, we did not propose to presume that there was

10 sufficient evidence, nor was our notice attempting to elicit more facts. We proposed

11 to affirm on the ground that the evidence recounted in the docketing statement was

12 adequate to support the convictions. We simply were questioning how the evidence

13 recounted might not be sufficient, given that it so clearly seemed to meet the elements.

14 We see no basis to place this case on the general calendar.

15 {4} For the reasons stated in our notice and in this opinion, we affirm the district

16 court’s judgment and sentence.

17 {5} IT IS SO ORDERED.

18 __________________________________

19 LINDA M. VANZI, Chief Judge
4

1 WE CONCUR:

2 _________________________________

3 TIMOTHY L. GARCIA, Judge

4 _________________________________

5 STEPHEN G. FRENCH, Judge