COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SYLVIA MORENO,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-12-00106-CR

Appeal from the

County Court at Law No. 7

of El Paso County, Texas 

(TC# 20100C13709) 

O P I N I O N

Sylvia Moreno appeals the trial court’s judgment convicting her of driving while 

intoxicated (DWI) and sentencing her to 30 days in jail. In a single issue, Moreno challenges the 

sufficiency of the evidence sustaining her conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

El Paso Police Officer Emiliano Nevarez responded to a late-night dispatch call concerning

a two-vehicle accident. When he arrived on the scene, Officer Nevarez encountered Moreno, 

who admitted to him that she struck the rear end of the other vehicle and had earlier consumed 

alcohol. Nevarez smelled a strong odor of alcohol on Moreno’s breath and noticed that she had 

red, bloodshot eyes and was swaying. With Moreno’s permission, Nevarez conducted several 

field sobriety tests. Moreno exhibited all six clues of intoxication on the horizontal gaze 

nystagmus test, five of eight clues of intoxication on the walk-and-turn field test, and three of four 
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clues of intoxication on the one-leg-stand test.

Based on Nevarez’s observations and field testing, he placed Moreno under arrest for DWI. 

Following her arrest, Moreno voluntarily submitted two breath samples on an Intoxilyzer machine. 

Taken approximately one hour after the accident, the tests showed Moreno’s breath-alcohol level 

to be 0.203 grams of alcohol per 210 liters of breath and 0.212 grams of alcohol per 210 liters of 

breath.

The State charged Moreno with misdemeanor DWI. See TEX.PENAL CODE ANN. § 49.04 

(West Supp. 2012). At trial, the contested issue was whether Moreno was intoxicated. The jury 

initially informed the trial court that it was deadlocked, but after receiving an instruction to 

continue deliberating, subsequently found Moreno guilty.

SUFFICIENCY OF THE EVIDENCE

Moreno contends that the evidence is insufficient to sustain her conviction because the 

State failed to prove that she was intoxicated. We disagree.

Standard of Review

The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in 

determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323 

S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to 

support a criminal conviction, we view the evidence in the light most favorable to the verdict to 

determine whether, based on that evidence and reasonable inferences therefrom, a rational juror 

could have found the essential elements of the offense beyond a reasonable doubt. Hooper v. 

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at 
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2788-89.

Under a legal sufficiency review, we may not substitute our judgment for that of the jurors, 

who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given 

to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore 

defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable 

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. 

at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences 

may be drawn from them, the jurors may accept one version of the facts and reject another, and 

they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State, 

34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275 

S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston 

[1st Dist.] 2000, pet. ref’d).

Applicable Law

A person commits DWI if she is intoxicated while operating a motor vehicle in a public 

place. TEX.PENAL CODE ANN. § 49.04(a); Sierra v. State, 280 S.W.3d 250, 254 (Tex.Crim.App. 

2009). The State can prove intoxication by establishing the defendant had an alcohol 

concentration of at least 0.08—the “per se” theory—or by proving the defendant did not have the 

normal use of mental or physical faculties by reason of the introduction of alcohol or another 

substance—the “impairment” theory. Kirsch v. State, 306 S.W.3d 738, 743 (Tex.Crim.App. 

2010); see TEX.PENAL CODE ANN. § 49.01(2)(A), (B)(West 2011). These theories are not 

mutually exclusive. Kirsh, 306 S.W.3d at 743.

Discussion
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When viewed in the light most favorable to the verdict, the evidence is sufficient to prove 

Moreno was intoxicated. Moreno admitted at trial that she consumed two beers before the 

accident and two and one-half with her father earlier in the day. At the scene of the accident, 

Nevarez noticed that Moreno was swaying, had bloodshot eyes, and smelled of alcohol. 

Moreno’s poor performance on the three field sobriety tests indicated that she was impaired, both 

physically and mentally, by alcohol. The two breath-test results showed that Moreno’s breath 

alcohol concentration was more than two and one-half times the legal limit. Based on such 

evidence, the jury could have rationally concluded that Moreno was intoxicated. See Bolen v. 

State, 321 S.W.3d 819, 823 (Tex.App.--Amarillo 2010, pet. ref’d)(evidence that appellant

admitted to officers that he had consumed “a 12-pack,” that officers noticed appellant smelled of 

alcohol and had bloodshot eyes and slurred speech, that appellant performed poorly on field 

sobriety tests, and that breathalyzer results established appellant had breath alcohol concentrations

above the legal limit was sufficient to prove appellant was intoxicated).

Moreno argues the State failed to prove that she was intoxicated through the “per se” 

theory because she presented evidence contradicting the breath-test results. According to 

Moreno, the breath-test results are insufficient to prove intoxication because there was: (1) 

evidence that she did many things well on the field sobriety tests and was not slurring her words or 

falling down; and (2) testimony that she was not intoxicated. But Moreno’s argument is 

unpersuasive. The reconciliation of conflicts in the evidence is within the exclusive province of 

the jury—not an appeals court. See Margraves, 34 S.W.3d at 919; Henderson, 29 S.W.3d at 623. 

That the jury chose not to believe Moreno, her family, and her counsel’s arguments and 

insinuations was its prerogative, and in conducting our legal sufficiency review, we are prohibited 
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from re-evaluating the weight and credibility of this evidence or substituting our judgment for that 

of the jury. See Williams, 235 S.W.3d at 750. In light of the evidence presented by the State, the 

jury was free to believe that Moreno was intoxicated notwithstanding Moreno’s argument to the

contrary.

Moreno also asserts that the State failed to prove that she was intoxicated through the 

“impairment” theory because Nevarez “testified that he made no determination whether [she] had 

the normal use of her mental and physical faculties[.]” But the record belies Moreno’s assertion. 

On redirect examination, Nevarez was asked “Based on your training and experience and what you 

observed that night, is it your opinion that the defendant did not have full control of her mental and 

physical faculties?” Nevarez replied “That is correct, sir.”

Moreno’s issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

October 9, 2013

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)