### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00686- CR

Alexander P ina, App ellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 5 O F TRAVIS CO UNTY, NO . C-1 -CR- 07- 2145 59

HO NORAB LE NANCY WRI GHT H OH ENGARTEN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A j u ry found Alexander Pina g uilty of driving while intox icated and assessed punishment at one y ear

in jail and a $4,000 fine , both probated w hile he ser ves a two-y ear term of community supervision. On appea l, Pina contends that the evidenc e is leg ally insufficient to support the ver dict. We will affirm the judg ment.

When an appellant challeng es the sufficie ncy of the evidence to sustain a criminal conviction, we must decide whether a rational trier of fac t could have found the essential elements of the offe nse bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 324 (1979); Clayton

v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We revie w all the evidenc e in the light most favor able to th e v er d i ct an d must assume that the trier of fac t resolved conflicts in the testimony , weig hed the evidenc e, and drew rea sonable infere nces in a manner that supports t h e verdic t. Clayton , 235 S.W .3d at 778.A person commits the offe nse of driving while intox icated if he is intox icated while

opera ting a

motor vehicle in a

public place . Tex. P enal Code A nn. § 49.04(a) (West Supp. 2012). “I ntox icated” means: “not having the normal use of mental o r p h y s i ca l fac ulties by rea son of the introduction of alcohol

. . . into the body .” Id. § 49.01(2)( A) (West 2011). Pina’s arg ument on appea l focuse s on whether there was sufficie nt evidenc e that he lacke d the normal use of his mental or phy sical fa culties.

The chief evidenc e at trial was the arres ting office r’s testimony and the videotape taken by the came ra mounted in the office r’s patrol car as he followed the vehicle Pina was driving

acr oss downtown Austin and then questioned Pina in a parking lot. The office r testified that, while

on patrol afte r 2 a.m. on J uly 21, 2007, he noticed a vehicle trave ling northbound in the middle lane of L avac a Street quickly chang e to the rig ht lane, run the red light to turn rig ht onto West 4th Street, and cut off pedestria

ns i n the crosswa lk. Shortly there afte r, the office r turned on his videotape and followe d Pina east along 4th Street, down Red River Stree t, and eve ntually to the intersec tion of Cesar Chavez Street and I -35. The office r testified and the video shows that, along the way , Pina stopped at intersec tions well past the stop line and blocked the crosswa lk sever al times. Where the street narr owed afte r an intersec ti o n d u e to the introduction of ang led parking spots, he corr ecte d fairly abruptly to the left as he near ed the first parke d car . He made a wide rig ht turn onto Red River Street, t rave l i n g for a portion of t he block in the wrong lane whil e there was no oncoming traff ic. He did use turn indicators proper ly and avoide d hitting pede strians who we re in the stre et. The office r testified that at the stop Pina had bloodshot and g lassy ey es and a strong odor of alcohol from his brea th, althoug h his speec h was not impaired. Pina denied drinking alcohol

2and declined to explain the smell on his brea th. He also ref used to perf

orm any field sobriety tests. The office r detec ted no balanc e problems, but testified that Pina was sway ing and appea

red to almost fall aslee p. Pina handed over an identification car d rathe r than his driver’ s license, which the office r testified was plainly visible. Pina mistakenly answe red that the t i m e wa s 1:30 rathe r than the ac tual 2:30.

Pina arg ues that the evidenc e does not support the jury ’s verdic t. He minimi zes the

err ors he made while driving

. For instance, he descr ibes his maneuve r to avoid the parke d car as a “g lide” to the left. He also char acte rizes his repe ated “minor” tr af fi c infrac tions as due to sloppy driving h ab i t s rather than impairment. He arg ues that there are many cause s for bloodshot ey es and alcohol-smelling brea th, including consumption of alcohol that did not cause intox ication. He contends that the office r demonstrated a tendenc y to construe events as pro m p t ed by alcohol consumption. He contends that, even if some of the evidenc e could be construed as consistent with intox ication, it was insufficie nt to prove intox ication bey ond a re asonable doubt.

We disag ree . The jury hear d testimony from the police office r, saw the videotape that showed wh at t h e o ff

icer saw, and conclude d that Pina was intox icated. We may not re- evalua te the weig ht and cre dibilit y of the rec o rd ev i d ence and there by substitut e our judgme nt for that of the fact-finde r. Isassi v. Stat e , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010). Our role on appea l is restricted to g uarding ag ainst the rar e occur renc e when a fac tfinder does not act rationally

. Id. Viewing the evidenc e in the light most favor able to the verdic t as we are require d to do, we conclude that the rec ord contains sufficie nt evidence from which rational jurors could conclude bey ond a

rea sonable doubt that Pina drove a vehicle in a

public place while intox icated.

3Affir med.

J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Aug ust 23, 2012 Do Not Publish

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