### 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. 03-15-00228- CR

Clif ton Cre ws Hoyt, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-1 3-0 316- SB , H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

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

Clifton Crews Hoy

t was char g ed with driving while intox icated. See Tex. Penal Code § 49.04(a) (listing elements of offe nse). The indictment also alleg ed that Hoy t had previously been convicted of the offe nse on two prior occa sions, which eleva ted the level of t h e o ffe nse to

a third-deg ree felony

. See id. § 49.09(b)( 2). I n addition, the indictment alleg ed that Hoy t was also previously convicted of a felony -leve l offe nse for driving while intox icated , which eleva ted the permissible punishment rang e for the offe nse at issue to that of a s ec o nd-deg ree felony

. See id. § 12.42(a)

. Prior to trial, Hoy t filed a motion to suppress evidenc e rela ting to his arr es t , an d the district court denied the motion afte r the trial started. Once the district court ruled on the motion to
suppress, a video rec ordi n g fr o m t he dashboar d came ra of the arr esting office r, Offic er Antonio Ag uilar, was admitted into evidenc e and p l ay ed for the court. At the end of the bench trial, the district court found Hoy

t g uilty and sentenc ed him to fourtee n y ear s’ imprisonment. See id. § 12.33(setting out permissible punishment rang e for second- deg ree felony ). I n two issues on appea l, Hoy t

asser ts that the district court err ed by deny ing his motion to suppress and that the evidenc e is leg ally insufficient to support his conviction. We will affirm the district c ourt’s judg ment of convic tion.

DISCUSSIO N Motion to Supp ress

I n his first issue on appea l, Hoy t a sserts that the district “ court err ed in its denial of [hi s] m otion to suppress based on lack of probable cause ” to initiate the t raf fic stop and to further detain him in order to ha

ve Hoy t perfor m field-sobriety

tests. 1 Although Hoy

t contends that there was not probable cause to support the traff ic stop

or his continued detention, probable cause is not require d to initiate an investiga tive detention.
See Tow nsend v. S t a t e , 8 1 3 S.W .2d 181, 185 (Tex. App.—Houston [14t h Dist.] 1991, pet. ref’d).
I nstead, an off

icer may initiate a traf

fic stop if he ha s rea sonable suspicion that a c rime is about to be committed or has been committed. See Guerra v. State , 432 S.W .3d 905, 911 (Tex. Crim. App. 2014). I n order for rea sonable suspicion to exis t, an actua l violation does not need to have occur red; rathe r, it is only nece ssary that “the office r rea sonably believed a violation was in prog ress.” Gree n

As mentioned ab o v e, t h e ruling on the m otion to suppress was made during the trial and 1 befor e t h e video was admitted into evidenc e and play ed for the di strict court. Acc ording ly , when evalua ting whether the di s t rict court abused its discretion by deny ing the motion to suppress, we limit our revie w to the evid en ce b efore the district court when it made its ruling

. See Herrera v. S t a t e , 80 S.W .3d 283, 290-91 (Tex. App.—Texarkana 2002, pet. ref ’d) (on reh’ g ) (stating that g ener al rule is that cour

ts “consider

only the evidenc e adduc ed at the suppr ession hear ing beca use the ruling was b ased on that evidenc e rathe r than evidenc e introduced later” but that there is exception to g ener al rule “whe n the s u p p re s sion issue has been consensua lly relitig ated by the parties dur ing tr ial”). 2v. State , 93 S.W .3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref ’d); see Carmouche v. State , 10 S.W .3d 323, 328 (Tex. C ri m . Ap p . 2 000) (noting that office r may briefly detain person for investiga tive purposes on less than probable cause wher e specific and articula ble facts along with infere nces from those fac ts rea sonably war rant detention). “I n assessing whether the intrusion was

rea sonable, an objective standard is utiliz ed: would the fac ts available to the office r at the moment of the seizure or sear ch war rant a man of re asonable caution in the belief that the action taken was
appropr iate.” Davis v. State , 947 S.W .2d 240, 243 (Tex. Crim. App. 1997); see also Garcia v. State , 43 S.W .3d 527, 530 (Tex. C ri m . Ap p . 2001) (ex plaining that “[t] his standard is an objective one: there need only be an objective basis for the stop; the subjective intent of the office r conducting the stop is irrele vant”)

. Moreove r, the assessment is made in light of the totality of the circ umstances. W oods v. State , 956 S.W .2d 33, 38 (Tex. Crim. App. 1997).

I n addition, the analy sis considers the cumulative information that was known to the
cooper ating office rs, and it is not nece ssary that the detaining office r have knowledg e of ever y fac t

s u pporting rea sonable suspicion. Derichsweiler v. State , 348 S.W .3d 906, 914 (Tex. Crim. App. 2011); see Illinois v. Andreas , 463 U.S. 765, 7 7 1 n . 5 (1 9 8 3) (explaining that if law enfor ceme nt offi ci al s ar e cooper ating in investiga tion, “the knowledg e of one is presumed share d by all”). Provided that the traff

ic stop is based on rea sonable suspicion, then the detention “does not violate
Texas law.” Guerra , 432 S.W .3d at 911. Fu rt hermore , if during a valid detention, “the office r develops rea sonable s u s picion that the detainee is eng ag ed in criminal activity , prolong ed or continued detention is justified.” Haas v. State , 172 S.W .3d 42, 52 (Tex. App.— Waco 2005, pet. re f’d) ; see also State v. W oodard , 341 S.W .3d 404, 414 (Tex. Crim. App. 2011) (deter mining

3that information known to office r g ave h im rea sonable suspicion to detain and administer

field-sobrie ty

tests). Appellate courts revie w a trial court’s ruling on a motion to suppress for an abuse of discretion. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013). Under that standard, the rec ord is “viewe d in the light most favor able to the trial co u rt ’s d et ermination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outside the zone of rea sonable d is a g r e e me n t. ’ ” S

ta te v
. S to r y , 4 4 5 S. W. 3 d 7 2 9 , 7 3 2 ( T e x. Cr im

. A p p . 2 0 1 4 ) ( q

u o ti n g S ta te v
. D ix o n , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). Moreove r, appell at e co u rt s apply “a bifurcated standard, g iving almost total defe renc e to the historical fac ts found by the trial court and analy zing de novo the trial court’s application of the law.” State v. Cuong Phu Le , 463 S.W .3d 872, 876 (Tex. Crim. App. 2015); see Arguellez , 409 S.W .3d at 662 (explaining that appellate courts aff ord “almost complete defe renc e . . . to [a trial court’s] deter mination of historical fac ts, espec ial ly if those are based on an assessment of cre dibilit y and demea nor”)

. “T h e same defe renc e is aff orded the trial

court with respe ct to its ruling s on application of the law to questions of fac t and to mix ed questions of law an d fac t, if resolution of those questions depends on an evalua tion of cre dibilit y and demea nor.” Crain v. State , 315 S.W .3d 43, 48 (Tex. Crim. App. 2010). “When the trial court does

not file finding s of fac t conce rning its ruling on a motion to suppress, we assume that the court made implicit finding s that support its ruling , provided that t h o s e implied finding s are supported by the

rec ord.” Ex parte Moore , 395 S.W .3d 152, 158 (Tex. Crim. App. 2013). I n addition, a trial court’s

ru l ing on the motion will be upheld if it is corr ect under any theory of law applicable t o t h e ca s e
reg ardle ss of whether the trial court based its ruling o n t hat theory

. Story , 445 S.W .3d at 732.

4Fur

ther, a ppellate c ourts “view the evidenc e in the light most fa vorable to the ” trial court’s r uling. State v. Robinson , 334 S.W .3d 776, 778 (Tex. Crim. App. 2011).

During the trial, the only witness who testified was Offic er Ag uilar. I n his testimony , Offic er Ag uilar explained that he initiated a traff ic stop beca

use he believed Hoy

t was driving with

a suspended license and beca use he ob s er v ed Hoy

t violate a city traff

ic ordinanc e. I n particula r, Offic er Ag uilar rec alled that he rec og nized Hoy t when he drove by on his motorcy cle becau s e he had “pre viously dealt with [Hoy t] reg arding ” Hoy

t’s driving with an invalid license and that he knew that Hoy t’s “license was invalid.” See Tex. Transp. Code § 521.457 (providing that person commits

o f f e n s e if h e “ o p e r a

te s a mo to r v e h ic le ” w h il e h is li c e n s e is c a n c e ll e d , s u s p e n d e d , r e v o k e d , o r e xp ir e d )

. When disc u ssing this further , Offic er Ag uilar explained that Hoy t had been g iven multipl e suspensions “not too long be fore ” the da y in question. Although Office r Aguilar admitted that he

was not “100 perc ent” cer tain that Hoy

t’s license was suspended at the moment he initiated th e traff ic stop and that he did not chec k to make sure befor e making the stop, he stated that “[i] t didn’t

seem reasona

ble t o me t hat every single one of thos e h ad been l ifted” in the amount of t ime since his previous encounte r with Hoy t. Cf. W illiams v. State , No. 11-12-00163- CR, 2014 WL 2810083,

at *2 (Tex. App.—E as t l an d J une 19, 2014, no pet.) (mem. op., not desig nated for publication) (noting that office r initiated traff ic stop “base d on his awa rene ss of [defendant]’s outstanding

war rant” throug h elec tronic databa se “that office rs wer e supposed to revie w . . . on a daily basis” and that “an office r’s belief that the owner of a vehicle has an outstanding arr est war rant may constitute

rea sonable suspicion justify ing a n investiga tive stop of the vehicle ”).

5Reg arding the city ordinanc e, Offic er Ag uilar explained that he saw Hoy t violate the ordinanc e when he display ed “an exhibi tion of acc eler ation” by leaving “the flow of traff ic [by ] taking off faster than the other vehicles.” See San Ang elo, Tex. Code of Ordinanc es §§ 10.03.002 2 (prohibiting person from making “an exhibi tion of acc eler ation while driving a motor vehicle on a public street” ), .01.001 (providing t hat “[e]x hibition of acc eler ation” means, among other things, “[a]cceler ating a motor vehicle so as to move rapidly ahea d o f o r o u t o f a g roup of other motor

I n his briefs, Hoy

t asser ts that Offic er Ag uilar’s testimony that he “violated a city ordinanc e 2

. . . is nothing more than a mere opinion not supported by ‘spec ific, articula ble fac ts.’” As support for his a ssertion that Off

icer Ag uilar’s testimony

is insufficient, Hoy

t principally

relies on Ford v. State , 158 S.W .3d 488 (Tex. Crim. App. 2005). I n that case , the officer init iated a traff ic s top for failing to comply with a provision of the Transpor tation Code requiring drivers to “‘ma intain an assure d clea

r distance betwee n the two vehicles so that, considering the speed of the vehicles, traff ic, and the conditions of the highw ay , the opera tor can safe ly stop without colliding with the prec eding vehicle or veer ing into another vehicle, o bject, or person on or near the highw ay .’” Id. at 490 (quoting Tex. Transp. Code § 545.062(a) ). During the suppression hear ing, the office r simply asser ted that he observe d the defe ndant “following too close” without further explanation. Id. at 491. On appea l, the court of criminal appea ls explained that the testimony “re veal[ed] an absenc e of any fac ts allowing an appellate court to deter mine the circ umstances upon which [t h e office r] could rea sonably conclude that [t he defe ndant] actua lly was, had been, or soon would have been eng ag ed in c r im ina l activity ” and was instead “pre sented only with a conclusory statement that [t he d e f e n d a n t ] w a s v io la ti n g a tr a f f ic la w . ” I d

. a t 4 9 3

. F u r th e r , th e c o u

r t e xp la in e d th a

t “ a r ti c u la b le f a c ts are require d to provide a basis for finding rea sonable suspicion”; that “[m] ere opinions are ineffe ctive substitut es for specific , articula

ble fac ts in a rea son ab l e- s u s picion analy sis”; and that without those “a court has no mea

ns in assessing whether

this opini on was objec tively rea sonable.” Id.
We find Hoy

t’s rel i an ce o n F

ord misplaced. I n this case , Offic er Ag uilar did not simply provide a conclusory opinion that Hoy t display ed an “exhibiti on of acce lera tion” an d instead also explained that he observe d Hoy t leave “the flow of traff

ic taking off faster than the other vehicles” and ag ree d that he observe d “a rapid acc eler ation awa y from traff

ic.” Acc ording ly , Offic er Ag uilar provided additional fac ts from which the district court could assess whether the opinion that a violation occur

red was objective l y reasonable. Even assuming for the sake of arg ument that this additional information was insufficient, Offic er Ag uilar also ini t i at ed a t raffic stop based on his belief that Hoy

t was driving without a valid license , wh i ch was founded on Offic er Ag uilar’s persona l knowledg e from his prior interac tions with Ho y t that multipl e suspensions had been imposed on Hoy

t’s license not “ too long be fore ” the da y in question. 6vehicles which are trave ling at approximately the officia lly posted speed limit in the are a”)

. When 3 making its ru l i n g, t h e district court explained that Offic er Ag uilar was authorized to stop Hoy t
to asce rtain whether Hoy t was driving without a valid d ri v er’s license and that it found Offic er Ag uilar’s testimony

that he obser

ved Hoy t commit a traff

ic violation to be cre dible.
I n light of the district’s court’s cre dibilit y deter mination reg arding Offic er Ag uilar and in light of the Offic er’ s testimony , we must conclude that the district court did not abuse its discretion by deter

mining that Offic er Ag uilar had rea sonable suspicion to initiate a traff ic stop. See Bullock v. State , 426 S.W .3d 226, 229 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (stating that

“ [a ] la w e n f o r c e me n t o f f ic e r ma y la w f u ll y s to p a n d d e ta in a mo to r is t w h o c o mm it s a tr a f f ic v io la ti o n ” ) ; Bracke n v. State , 282 S.W .3d 94, 98 (Tex. App.—For t Worth 2009, pet. ref

’d) (explaining that violation of provision of Transpor tation Code cre ates re asonable suspicion justi fy ing stop).
I n addit i o n to testify ing about the two traff ic violations, Offic er Ag uilar explained that prior to initiating the traff ic stop, he rec eived a repor t from his dispatch aler

ting him that there had been a repor

t of an individual driving rec klessly in the are a and providing him with the license plate number for the vehicle. Fur ther, Offic er Ag uilar explained tha t he ran the plate number, that the vehicle was reg istered to Hoy t, and that he saw Hoy

t drive by on that vehicle. See Rita v. State , No. 08-14-00098- CR, 2016 WL 419677, at *6 (Tex. App.—El Paso Fe b. 3, 2016, no p et

. ) (n o t desig nated for publ ication) (concluding that repor t of defendant’ s “er

rati c d ri v i n g , occur

ring only minutes befor e” office r arr iv ed , “wa s sufficie nt to cre ate a rea sonable suspicion that” defe ndant

I n his testimony , Offic er Ag uilar admitted that Hoy t did not e ndang er any other motorists 3 when he violated the ordinanc e, but the ordinanc e does not require that any one be place d in dang er by the driver’ s exhibi tion of acc eler ation in order for the acc eler ation to constitute a violation. See San Ang elo, Tex. Code of Ordinanc es §§ 10.03.002, .01.001. 7“had been driving while intox icated, o r wa s o t h erw ise driving in a rec kless manner ”); see also

Kirsch v. Stat e , 306 S.W .3d 738, 745 (Tex. Crim. App. 2010) (noting that “er ratic dr iving” is one ty pe of evidenc e t h at would logic ally raise infere nce of intox ication). When discussing events that occur

red afte r h e activate d his emer g ency lights, Offic er Ag uilar rec alled that Hoy t “didn’t pull over immediately ,” that he continued “a few blocks befor e” pulling over, and that he made a left turn befor e pulling over on a side street instead of g oing to the “rig ht-hand side o f t he roadw ay and pulling over.” See Bake r v. State , No. 09-13-00085- CR, 201 4 W L 1 4 0 0 3 73, at *5 (Tex. App.—B eaumont Apr. 9, 2014, pet. ref ’d) (mem. op., not desig nated for publication) (noting , among other things, that defe ndant “fa iled to pull over immediately ” when deciding that trial court did not abuse its discretion by deny ing motion to suppress and concluding that rea sonable suspicion exis ted for of

fice r to believe that defe ndant committed offe nse of dr iving while intoxicated). Reg arding the events th at o cc u rr ed afte r Hoy t pulled over, Offic er Ag uilar rela ted that althoug h he did not smell alcohol, he stated that Hoy t “wa s very ag itated, fidg ety , seeme d to be having a har d time holding still,” and “se emed off” and “outside of the nor m” from other

times in wh i ch Offic er Ag uilar had interac ted with Hoy t. Specifica lly , Offic er Ag uilar stated that Hoy t ’s behavior during the traff

ic stop was simil ar to another time that he interac ted with Hoy t when Hoy

t was “ clea rly under the influence of a drug ” and was dissimi lar to the behavior that Hoy t display ed

on y et another occa sion when Hoy t was not intox icated. Acc ording ly , Offic er Ag uilar explained that he believed that he neede d to conduct an investiga tion reg arding whether Hoy t was intox icated. Cf. Kiff e v. State , 361 S.W .3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref ’d) (noting that, in ge nera l, office r’s testimony that acc used wa s intox icated is e vidence of intox ication).

8I n light of all of the circ umstances and information known to Offic er Agu i l ar, we

must conclude that the district court did not abuse its discretion by deter mining that rea sonable

s u s p i ci on exis ted for Offic er Ag uilar to conclude that Hoy t had committed the offe nse of driv i n g while intox icated and to detain Hoy t for the purpose of perf

orming field-sobrie ty testing. See Tex. Penal Code § 49.04(a ).

For all of these rea sons, we must conclude that the district court d i d n o t abuse its discretion by deny ing Hoy t’s motion to suppre s s . Acc ording ly , we overr ule Hoy t’s first issue
on appea l.

Suf fi ciency of the Evidence

I n his second issue on appea l, Hoy t contends that the evidenc e prese nted during the trial was insufficient “to support [hi s] conviction for driving while intox icated” b u t l i m i ts his challeng e to the evidenc e supporting a deter mination that he was intox icated. When prese nting this 4 issue, Hoy

t notes that “[t] here was no brea th sample, blood draw , or fore nsic analy sis.” I n addition, he asser ts that while the Transpor tation Code require s a police office r t o o b t ai n a s ample of a person’ s brea th o r b l o o d if the office r lear ns that the person “has been previously convicted of or place d on community supervis i o n for” driving while i ntox icated “on t wo or more occasions,” see

On appe al, Hoy

t asserts that the e vidence for his convic tion is “both leg ally and fa ctually 4 insufficie n t

. ” Howeve r, the court of criminal appea ls has clar ified that the “leg al-suff iciency standard is the only standard that a revie wing court should apply in deter mining whether the evidenc e is suf

ficient to suppor

t eac h element of a criminal offe nse.” Brooks v. State , 323 S.W .3d 893, 895 (Tex. Crim. App. 2010); cf. Lucio v. State , 351 S.W .3d 878, 895 (Tex. Crim. App. 2011) (explaining that “ we do not re view the f actua l sufficienc y of the evidenc e . . . on the elements of a criminal off

ense tha t the State is require d to prove be y ond a re asonable doubt”). 9Tex. Transp. Code § 724.012(b)( 3), no evidenc e was prese nted reg arding why Offic er Ag uilar “did

not seek a mandatory blood dr aw.” Fur thermore , Hoy

t contends that his perf

ormanc e on the fieldsobriety tests “ar e irre levant inasmuch as Offic er Ag uilar stated that he did not believe [t hat Hoy t]

was intox icated by alcohol” but by some other substance. Moreove r, Ho y t asser ts that Offic er Ag uilar did not perf

orm any drug -re cog nition testing and instead simply relied on the ty pes of tests used to eva luate whe ther someone was intox icated f rom consuming alcohol. Under the Penal Code, an individual commits the off e n s e o f driving while intox icated
if he “is intox icated while opera ting a motor vehicle in a public place ,” Tex. Penal Code § 49.04(a) , and an individual is intox icated if he does not ha ve “the normal use of mental or phy sical fac ulties by rea son of the introduction of alcohol, a controlled substance, a drug , a dang erous drug , a combination of two or more of those substances, or any other substance into t h e b o d y , ” id. § 49.01(2). I n a leg al-suff iciency revie w, appellate courts view t h e evidence in the light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

orming this an al y sis, a revie wing court must bear in mind that it is the fac t-finder ’s duty to weig h the evidenc e, to resolve conflicts in the t est imony , and to make

rea sonable infere nces “fr om basic fac ts to ultimate fac ts.” Id. Fur thermore , revie wing courts must “d et ermine whether the nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e when viewed in the light most favor able to the verdic t.” Hooper v. Stat e , 214 S.W .3d 9, 16-17 (Tex

. Crim. App. 2007). Moreove r, re v i ew ing courts presume that conflicting infere nces wer e resolved in favor of the conviction and defe r to that resolution. Clayton
v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).
10As discussed previously , Offic er Ag uilar testified that he rec eived a repor t that Hoy t had been drivi n g i n a reckless manner and that Hoy t continued to drive rather than pull over after Offic er Ag uilar activate d his emer g ency lights. Moreove r, the video shows that afte r Offic er Ag uilar activate d his lights, Hoy

t moved into the left hand lane instead of pulling over to the rig ht lane and parking at one of sever al parking lots on the rig ht side of the road, that Hoy t continued to drive for

sever al blocks befor e making a left-ha nd turn onto another ro ad , t h at Hoy t passed a g as station parking lot on his rig ht afte r making the turn, and that Hoy t turned on his rig ht-turn si gn al afte r turning but continued to drive on the new road for some time with the signa l flashing befor e ultimately

pulling over

to the side.
I n addition, during his testimony , Offic er Ag uila r related that he had extensive training in perf

orming field-sobrie ty tests and was a cer tified drug -re cog nition expert, meaning that he had rec ei ved training for identify ing the ty pe of drug s that a person may have consumed based on the per son’s beha vior. Although Offic er Ag uilar admitted, as pointed out by Hoy t, that he was unable to per form any

drug -re cog nition testing at the scene , he believed that Hoy t w as intox icated due to the inge stion of something other than alcohol. Moreove r, Offic er Ag uilar mentioned that it 5
“wa s pretty chilly ” that day and that he thought that he was wea ring a coat, but he also rela ted that when he interac ted with Hoy t, he noti ce d t h at Hoy

t was wea ring shorts. Fur

ther, Offic er Ag uilar

rec alled that Hoy

t “wa sn’t shivering ” and that he was fidg ety an d wa s scra tching himself. I n

L ater , Offic er Ag uilar explained that when he a rre sted Hoy

t, he sea rche d Hoy

t a nd found 5 a bag g y filled with a substance that he believed wa s m arijuana , and Offic er Ag uilar testified that Ho y t stated that it was marijuana and that he was “a marijuana user” but denied being under “the influence of any

illicit drugs.” 11addition, Offic er Ag uilar elabor ated that throug h his experience and train i n g, he has lear ned that

“ p e o p le w h o a

r e u n d e r th e in f

lu e n c e o f a d

r u g ma y n o t f e e l h e a t a n d c o ld th e s a

me a s a s o b e r p e r s o n .”
I n his testimony , Officer Ag uilar detailed his observa tions reg arding Hoy t’s
p er formanc e on various field-sobrie ty tests. See Kirsch , 306 S.W .3d at 745 (listing “inability t o perf orm field-sobrie ty tests or follow direc tions” as “evide nce that would logic ally raise an infere nce th a t th e d e f e n d a n t w a s in t o xic a te d ” )

. F ir s t, h e r e la

te d th a t h e p e r f o r me d th e h o r iz o n ta l- g a ze - ny s ta g mu s
te s t b u t th a

t h e “ d id n o t o b s e r

v e n y s ta g mu s in ” H o y

t’ s e y e s . H o w e v e r , O f

f ic e r A g u il a r a ls o e xp la in e d that if he was perf

orming the t est on someone who is under the influence of som ething other than alcohol, he would not expect to see a positive result for the test. Next, Offic er Ag uilar rec alled that he asked Hoy

t to perf orm the walk-a

nd-turn test and th at Ho y t d i s play ed three of eig ht possible indicators of intox ication. Specifica lly , h e rela ted that Hoy t was “unable to maintain his balanc e during the instructional stag e,” “missed touching h ee l -t o -t o e a few times,” and “had to use his

arm s to balanc e.” Moreove r, Offic er Ag uilar admitted that the national-hig hway -traf fic-sa fety

administration manual explains that the walk-a nd-turn test is only validated for alcohol intox ication, but he also explained that the same test can show intox ication from other cause s and that the test is used in drug -re cog nition testi ng .

After discussing the walk-a nd-turn test, Offic er Ag uilar testified that he asked Hoy t
to perf orm the one-le g test and that Hoy t display ed three of four possible indicators of intox ication.
I n particula

r, Offic er Ag uilar stated that Hoy t “swa y ed,” “had to use his arms for balanc e,” and “put his foot down.” See id. (explaining that swa y ing and stumbli ng are indicative of intoxi cation). In addition, Offic er Ag uilar stated that based on his training and under the totality of the circ umstances,

12he conc luded that Hoy t was intox icated. See Kiffe , 361 S.W .3d at 108 (providing that, in g ener al, office r’s testim ony

that individual is intox icated provides s ufficie nt evidenc e to establish element of intox ication). Fur

ther, as descr ibed ear lier, Offic er Ag uilar testified befor e the district court made its ruling on the motion to suppress that he had previously seen Hoy t intox icated and not intox icated and that Hoy

t’s behavior on the day in question was consistent with Hoy t’s b eh av i o r when he was intox icated.

Ne x t , Of fice r Aguilar rec alled that afte r determining that Hoy t was int ox icated, he

arr ested Hoy

t. When de scribing the arr est, Offic er Ag uilar rela y ed that Hoy

t was initially “ra g ing,
y elling, [and] cursing at me” but the n kept falling aslee p in the back of the patrol car . See Leigh v. State , No. 10-12-00056-CR, 2013 WL 5777852, at *4 (Tex. App.— W ac o Oc t

. 24, 2013, no pet.) (mem. op., not desig nated for publication) (e x plaining that fac t that defe ndant “fe ll aslee p while being transporte d to the jail” indicated that defe ndant was intox icated)

. I n addition, Offic er Ag uilar stated that when he woke Hoy t up on sever al occa sions , Hoy t “shot back up to that extremely

a g it a te d s ta te o f y e ll in g a

n d c u r s in g . ” S e e M a r k e y v
. S ta te , 9 9 6 S. W. 2 d 2 2 6 , 2 3 0 ( T e x. A p p . — H o u s to n [14t h Dist.] 1999, no pet.) (dete rmining that evidenc e o f cursing along with other evidenc e was sufficie nt to permit jury to rationally conclude that defe ndant was intox icated)

. When descr ibing Hoy t’s behavior in the police car , Offic er Agu i l ar ag ree d that falling aslee p was not the ty pical behavior for someone who has been arr ested and testified that he had not seen “the wild fluctuation of behavior ” during his previous interac tion with Hoy t when Hoy

t was not intox icated. Finally , as mentioned above, a video was play ed for the district court showing the events occur ring betwee n the traff ic stop and Hoy

t being transporte d to jail, and the video is g ener ally consistent wi t h Of fi ce r Ag uilar’s testimony

. 13I n light of all of the ev i d ence previously summarized as well as the rea sonable

infere nces that the district court could have made from that eviden ce an d gi v en our standard of revie w for leg al-suff

iciency challeng es, we must c onclude that the evidenc e is le g ally sufficie nt to support the district court’s deter mination that Hoy

t was intox i ca t ed

. Acc ording ly , we overr ule Hoy t’s second issue on a

ppeal.

Cleric al Error

Although Hoy

t d o es n ot raise this on appea l, we observe that the judgme nt of conviction in this case contains a cler ical err or. The judgme nt in this case ref lects that Hoy

t pleade d
“not true” to the enhanc ement alleg ation in the second p ar agr aph of the indictment asser ting that Hoy t had previously been convicted of a felony and that the district court made a “not true” finding
reg arding the alleg ation. Howeve r, the rema inder of the judgme nt ref lects that Hoy

t’s punishment level was enhanc ed based o n the enhanc ement alleg ation, and the repor ter’s rec ord in this case ref lects that Hoy

t enter ed a plea of “true ” to the alleg ation. This Court has the authority to modify incorre ct j udg ments when it has t he information nece ssary to do so. See T ex . R. App. P

. 43.2(b); Bigley v. State , 865 S

. W

. 2 d 2 6 , 27-28 (Tex

. Crim. App. 1993). For these reasons, we modify the judgme nt to refl ec t t h at Hoy t enter ed a plea of true to the enhanc ement alleg ation in the second
para g raph a

nd that the district court found the enhanc ement to be true

.

CONCLUSION
Ha v i n g m o d ified the judgme nt and having overr uled Hoy t’s two issues on appea l,

we a ffirm the district c ourt’s judg ment of convic tion.

14__________________________________________ David Pury ear , J ustice
Be fore Chief J ustice Rose, Jus tices Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: Aug ust 12, 2016 Do Not Publish

15