## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00014

- CR

____________________ _______

On Appeal from the 16th Di strict Court Dent on Co unty, Texas Trial Court No. F17

- 857

- 16

Before Sudderth, C.J.; Kerr and Wallach, JJ. Mem orandum Opinion by Justice Kerr 

### J OSE 

### F ERNANDEZ 

### , Appellant

V


### . T HE 

### S TAT E OF 

### T EXA S2 MEMORANDUM OPINION A jury found a ppellant Jos e Fernandez guilty of d riving whi le intoxicat e d with two pr ior DWIs , a third

- degr ee felon y . See Te x. Penal Code Ann. § § 49.04(a),
49.09 (b )(2)

. Afte r fin ding an en hancement paragraph true, the j ury assessed
Fer n andez ’ s punishment a t 11 years in pri son. See Tex. P enal Code Ann. § 12

. 42 ( a )

. The tr i al court sentenced Fernan dez, and he appealed. In his first issue, Fernan dez arg ues th at the tr ia l court erred by admitting

ev idence that , while being t ransported to jail, he cl aimed to be related to El Chapo
and , by implic ation, part of the Sinaloa c artel ; he contends its pre judicial value substantially outweigh ed any pro bative value. I n his second i ssue, Fernandez a r gues

t ha t the evidence was insuffici ent to show that he operated a motor vehicle while
intoxic ated. We affirm.
T he evidence shows Fern andez operated a motor veh ic le while intox icated
. Because F ernandez ’ s second point , his sufficiency comp laint , would result in greater relief if granted, we address it first. See Mixon v. State , 481 S.W.3d 318,
322 (T ex. App.

— Amarillo 2015, pet. ref ’ d). Fernandez argues that the State failed to prove that he operated a motor
vehicle because the evidence show ed th at the two officers who testified to having

seen him wh en he pull ed into a parking lot and g o t out of his veh icle cou ld not have
seen him from their vantage point of an apar tment complex ’ s second

- floo r landin g . H e contends that the evid ence sho ws that a ca rport would have blocked the ir view

.3 B ecause whether he ope rated a motor vehicl e is the only eleme nt Fernandez contests (and not whether he was intoxic at ed ) , w e limit o ur discussion to that element

. See Tex. R. App. P. 47.1, 47.4; McIntyre v. State , N o. 02

- 17

- 00167

- CR, 2018 WL 18 66083, at
*3 (Tex. App.

— Fort Worth Apr. 19, 2018, no pet.) (mem. op., not designated for publication) (contesting only whether appellant was intoxicated and not whether he

w as driving).
A. Standard of Revie w In our evidentiary

- suf ficie ncy review, we view all the evidence in the light most
fa vorable to t he verdict to determine whethe r any rational factfinder could hav e found
the crime’s essential elements be yond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 31 9 , 99 S. Ct. 2 781, 278 9 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2 017). This standard gives full p lay to the factfinder’s responsibility to
resolve conflicts in the testimo ny, to weigh the evidence, and to dr aw reasonable
inferences from basic fact s to ulti mate facts. See Jack son , 443 U.S. at 319, 99 S. Ct. a t 2789; Quee man , 520 S.W.3d at 622. The fa ct finder alone judges the evidence’s weight and credibility. See Tex. Code C rim. Proc. Ann. art. 38.04; Queema n , 520 S.W.3d at 622. We may not re

- evalua te th e ev idence’s weight and credibility and substitute our ju dgment for t he factfinder’s. Queeman , 520 S. W.3d at 622. Instead, we determine whether the necessary inferences are re asonable based on the evidence’ s cumulative force when viewed in the light m ost f avor able to the verdict. Murray v. State , 457 S.W.3d 446, 448 (Tex. C rim. App. 2015); see Villa v. St ate , 514 S.W.3d 227,4 232 (Tex. Crim. App. 2017) (“The court conducting a s ufficiency review must not
eng age in a ‘divide and conquer’ strategy but mus t con side r the cumulative for ce of all the evidence.”). We mus t presume th at the factfinder resolved any c onflicting inferences in favor of the verdict, and we must defer to that r esolution. Murray , 457 S.W.3 d at 448

– 49.
B. Dis cussion
Around 2:3 0 a.m. on Janu ary 1 , 20 17, Officer Jameson Ruff was dispatched to the Pinnacle Apartment s in Lewisville on a bur glary

- in

- pro gre ss call. Climbing the
stairs t o the second floor , he en countered the apa r tment ’ s occupants, who m he
described as frighte ned and upset. While Of ficer Ruff was talking to the m , they saw
Fernandez ’ s pickup p ulling into the parki ng lot , which prompted new j itte rs . Off icer
Ruff asserted t hat he had a view of the parking lot f rom the second

- floor landing and
that he saw Fer na ndez get out of his vehicle

. Al t hough there were trees and a car p ort, Offi cer Ruff said neither blocked his v iew

. Also responding to th e ca ll was Officer Jeffrey Pitman, who arrived at the scene after Officer Ruff and joined him either on or near the second

- floor landing

. He too des cribe d how the apartment ’ s occupants be came jumpy when they saw
Fernandez ’ s pickup pull ing into the parking l ot. Office r Pitman stated that he could

see Fe r nan dez ’ s veh icle m o ving in the pa rking lot and ending up par k ed in t he fire
lane near a bu il ding acr oss f rom the covered parking and that h e then saw Fer nandez5 get out of the vehicle. Like Officer Ru ff, Officer Pitman acknowledged that the
ap artments had a carport and trees but denied that anything bloc ked his view.
Fernandez ’ s daughter, Banes a Carl os, w ho li ved in t he apar tment along with
Fernandez , her mother , and her siblings, testified that it was not pos s ible to see the
par king lot when standing at the apa rtment ’ s do or . Six photos

— from ground level

— showed the second

- f loor apartment, the stairs , and t he ca rport. But Car l os also

a cknowledged that f rom where she was standing on the landing , sh e could see the
p olice cars pa rked n ea r her father ’ s pickup ; she could see cars parked ag ainst the far curb in the parking lot ; and she saw the police p ut her fathe r in a squad car

. Viewing the evi dence in the lig ht most favorable to the verd ict, Officer Ru ff , Officer Pitman , a nd Carlos all testified that from the landing, they could see in to the parking lot and could see Fern and ez ’ s pickup or the pat rol cars

. And ot her e videnc e showed that f rom the second floor , t he apartment ’ s occup ants beca me agita ted whe n they saw Fer nande z d rive int o the parking lot ; by implication, their view was not blocke d. We hold that a rational factfinder could have found beyond a reasonabl e dou bt that Fernandez operated a vehicle while intoxicated

. See Jackson , 443 U.S. at 319,
99 S. Ct. at 2789 ; Qu ee man , 520 S.W.3d at 622

. We ov errule Fernandez ’ s second issue.6 T he t r i al court did not abuse its discretion by admitting the evidence showing that F e rnandez claimed that El Chapo was his uncle
. A. Fernandez ’ s contention
I n his first issue , Fernandez argues that the trial court erred by admitting testimony and video evidence in which Fernandez cla imed to be related to El Chapo
and , in ferentially, co nn ect ed to the Sinaloa c artel

. A ccording to Fernandez, th is evidence ’ s preju dicial value subs tantial ly outweighed any probativ e value. See Tex. R.
Evid. 403.
B. The evidence
Because neither Offic er Ruff nor Officer Pitman spoke Spani sh and so could

not com mun icate with Fernandez , they called Spanish

- speaking De t ec tive Antonio
Barletta , who at the time was a pa trol officer , t o perform the field sobriety test s . A fter
Fernandez failed the tests, Detective Barletta arre s ted him

. W hil e Detective Barletta

was transp ortin g Fernand ez to the jail, v ideo capture d the two co nvers ing in Spanish ; when the State played the video to the jur ors , Detective Barletta translated it for the m . On the vide o, Detective Barl etta asked F ernan dez where he was from, and
F ernandez res ponde d th a t he wa s from Sinal oa, Michoacán , and that El Chap o was his uncle

. Not taking Fernandez seriously, Detective Barletta res ponded that coincidentally El Chap o was his uncle too, so tha t made them cousins. Dete ctiv e Barletta ’ s unde rstanding wa s that El C hapo ran a drug cartel in Sinaloa

. In Detective
Barletta ’ s est imation, an arrestee ’ s volunte er ing to a polic e officer that he was related7 to El Chap o was not something that a person would do if the person had t he us e of
hi s n ormal mental faculties

. He thou ght t hat Fernandez was joking.
C. Standard of review Rule 403 provides , “The court may excl ude relevant evidence if its probati ve value is substanti ally outweighed by a dan ger of one or mor e of the fol lowing: unfair prejudice, confusing the issues, misleading th e jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 40 3. At the outset, we recognize that
R

ule 403 favors admitt ing relevant evidence an d presumes that r elevant evid ence will generally be more probative than prejudicial. Se e Wel ls v. State , 558 S.W.3d 661,
669 (Tex. App.

— Fort Worth 2017, pet. ref’d) (ci ting Shuffield v. State , 189 S.W.3d 782,
78 7 (Tex. Crim. App. 20 06)). Appellants must ov ercome this presu mption and s how that the danger of unfair prejudice or the danger of m islea ding the jury substantially outweighs the evidence’s probative value. Id. When cond ucting a Rule 403 analy sis, a trial court mus t balan ce

• the proffered evidence ’ s inherent probative fo rce alon g with

• the proponent ’ s need for that evidence against

• the e viden ce ’ s tendency to suggest deciding an issue on an improper basis,

• the e vidence ’ s tendency to confuse or di stract the jury from the main issues,

• the evidence ’ s tendency to encourage the jury to give it undue weight because it lack s oth er information nee ded t o evaluate the evidence ’ s probative force , and8 • the likelihood that presenting the evidence will consume an inordin ate amount of time or merely repeat eviden ce already admitted

. Gonzalez v . State , 544 S.W.3d 363, 37 2 (Tex. Crim. App. 2018).
The evidenc e ’ s p robative force refers to how strongly it serves to make a
consequen tial fact more probable or less probabl e . Id

. Virtually all evidenc e that a party offers wi ll prejudic e its op ponent ’ s c as e ; prejudicing the opposition ’ s cas e is precis ely wh y th e part y off ers it. Casey v. State , 215 S. W. 3 d 870 , 883 (Tex. Crim. App.
2007 )

. So , some evidence prejudices an opponent but does so fa i rly by making a fact

o f consequen c e more or less prob able. S ee T ex. R. Evid. 401. But th e rules recognize
that other evide nce , altho ugh relevant, may pr ejudice a n opponent u nfairly. See T ex. R. Evid. 40 3

. Rule 403 is concerned only with “unfair” prejudice. Gonzalez , 544 S.W.3d at 37 3.
Unf air prejud ice refer s not to e vidence ’ s adverse or detrimental effect but to its undue tendency to s uggest deciding a conseque ntial issue on an improper basis

— such

as an emotional one. Casey , 215 S. W.3d at 883. E vidence is unfairly prejudicial if it has
the capacity to tempt fact finder s into find ing guilt for reasons other than the evidence specific to t he offense charged. Gonzalez , 544 S.W.3d at 37 3.
We review the trial court ’ s decision to adm it or exclude evide nce

— including its
decision re garding whether the dang er of unfai r prejudic e substantially outweigh s the disputed evidence ’ s probative value

— under an abuse

- of

- discretion standard. Id. at 37 0

. Decisions lying outside the zone of reasonable disagreement const itute an abuse9 of discretion. Id. Prov ided th e trial court ’ s rul ing falls within the reasonable

disagreement zone , w e may not substitute w ha t we would have done for what the trial

court actua lly did

. Id.
D. Di scussion
The S tate wanted Fernandez ’ s El Chapo com ment admitted to show that
Fernandez was into xica te d: [T] he Stat e is offering that portion of the video and that evidence as evidence of int oxica tion. That a normal non

- intoxicated person, the State ’ s argument will run, will sit quietly in handcuffs in the back of a police car and not say anything. Whe reas an intoxicat ed person might mak e some gran diose claims about their uncle being El Chapo or be ing connected

. . . to the Sinaloa car tel and those type of things. The State is not offering these for the pu rpose of connecting him to the Sinaloa car tel or Senio r Guzmán or anything like [that] . We ’ re simply off ering these for evidence of an intoxi cated person making grandiose claims to a police officer. Init ially, w e note that t he co mplained

- of e vi dence contained some probative
force for the pro positi on that Fe rnandez was intoxicated. Detective Barletta thought that Fernandez was boasting , that El Chapo ’ s being Fernandez ’ s uncle was ludicrous,
and that Fernandez ’ s linking himself to El Ch apo (and by implication, a drug cartel)

was not somethin g a perso n in his right min d would do. To Detective Barletta,
Fe rnandez’s making that statement to him refle cted very poor

— or very impaired

— judgment. See id. at 372

. O n the other ha nd, the State ’ s need for the evidence was argua bly mar ginal

— the St ate had the field so b rie ty tes t on video and Detectiv e Barletta ’ s testimo ny that10 Fernandez had failed the horizon tal

- ga ze

- nysta gmus test, the walk

- and

- turn test, and
the one

- leg

- stand test. A nd despite F ernandez ’ s blood not ha ving bee n draw n until
five and a ha lf hou rs a fter his arrest, he neverthel ess h ad a blood alcohol leve l of
.23 6

— nearly t hree times the legal limit. See id. Understandably, Fernandez focuses his arg uments on the evidence ’ s tend e ncy

to promote a gu ilty verdi ct o n an imprope r basis

. L ink ing Fernandez to El Chapo and
dr ug cartels , he argues, would enflame jurors ’ minds. See id. If th e State had presented
the ev idence as truthful , we might agree , b ut here the State presented it as dr unken prattle.
And because t he St a t e presente d the evi dence to show Fern andez ’ s intoxication , the eviden ce focused on one of the main issues ; the State did n ot use Fernandez ’ s c omme nt to confuse or distract the jury

. See id. In fact, t he parties ’ final
arg ume nts unders cored how neither si d e believed Ferna ndez was really re lated to El Chapo

. D efense counsel pitched Fern andez ’ s comment as “ jo king around , ” while the prosecutor ackn owled g ed that De tective Barletta never felt threatened and noted how

o dd Fernandez ’ s comment was

— a norm al arrest ee would skirt mentioning any tie s to a drug lo rd

. Next, t he e v idence did n ot consume an inordinate amou nt of time and did not repeat other evid ence. Detec tive Barletta related what Fernandez had said an d how he (Detec tive Barletta) had re acted to it. And on cross

- examination , Det ective Barletta11 clari fied that Fernandez mention ed only El Chapo and not the d rug carte l and reaffirmed that he thought Fern andez was jo king. See id. Finally, a forensic scien tist t estified that someone with a .236 blood

- alco hol

content

— which was what Fernandez still had hours after his arrest

— wou ld lose the
use of his mental and physical faculties. The jury was thus eq uip ped t o evaluate
F ernandez ’ s b luster as p robative evidence sho w ing intoxicatio n and, simultaneously,
to discount its weight as the truth , especially whe n Detective Barletta himself regarded
Fernandez ’ s statement as farcical

. See id. We hold that the trial c ourt ’ s ruling doe s not lie outside the z one of reasonable
disa gree ment an d th us that the trial court did not abuse its discret ion. See id. We
overrule Fernandez ’ s first issue. S ee Casey , 215 S.W

. 3d at 883

– 84 ( “ The photographs
of the naked unconscious woman (or wom en) having se x acts performed up on them were certainly pre judi cial. And it is undisputed that the photograp hs would generate an emotional response.

. . . However, the trial judge did not abuse her discretion ” because the photo gra phs c ircumstantial l y sho wed th at the com plainant did not

co nsent and , further, showed “ a [ modus operandi ] of group sex, dr ugs, and pho tography and rebutted the defensive theory that [the complainant] brought the drugs, initiated the sex, and consented to the photography. ” ).
Conc lusion Having o verruled Fernandez ’ s two is sue s, we affirm th e tr ial court ’ s judgment.12 /s/ Elizabeth Kerr Elizabeth Kerr Justice Do Not Publish Tex. R. App. P. 4 7.2(b)
Delivered : February 6, 2020