### 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

ON MOTION F OR REHEARING

NO. 03-08-00566- CR

Marie Loui se Ouellette , Appellan t

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 3 O F WI LLIAM SO N COUNTY NO. 06- 7243 -3, H ONO RAB LE DONALD H IGGINB OTH AM, J UDGE P RESIDING

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

We withdraw the opinion and judgme nt d at ed M ay 20, 2010, and substitut e the following opinion and judgme nt in their place . We deny appellant’ s motion for rehe aring

. A j ury found appellant Marie L ouise Ouellette g uilty of driving while intox icated. See Tex. Penal Code Ann. § 49.04(a) (West 2003). The trial court found the enhanc ement para g raph true, see id. § 49.09(a) (West Supp. 2008), sentenc ed her to 365 day s in the Wil liamson County jail,

an d as sessed a fine of $4,000. Finding the evidenc e fac tually sufficie nt to support Ouellette’ s conviction and no e rror

in the jury

char g e, we aff

irm the judg ment of the trial c ourt.Background On Aug ust 30, 200 6 , Ou el l ette rea r-e nded a car that was stopped at a traff ic light. Offic er Timothy L ittle responde d to the 911 call. He noticed the odor of alcohol on Ouellette’s brea th and observe d that she had g lassy ey es, that her balan ce wa s off, and that her speec h was slurred. After initially deny ing that she had consumed alcohol, Ouellette eventua lly admitted to drinking a g lass of wine.

At L ittle’s reque st, Offic er Richard M abe, an officer with the DW I task forc e unit ,
ar ri v ed o n the scene . At the time, Mabe had approximately ten y ear s of experience with th e Austin Police Depa

rtment, including six y ear s of ex perie nce with t h e DWI task forc e. Mabe first spoke with L ittle and then with Ouellette, confirme d the signs of intox ication observe d by L ittle, and continued L ittle’s investiga tion. After initially ref using a field sobriety test, Ouellette eventua lly al l o we d Mabe to administer the Walk and Turn test. Ouellette exhibi ted four of eig ht clue s o f intox ication, only two of which are nece ssary to show intox ication. Mabe also administered the Ho ri z o ntal Gaze Ny stag mus (HGN ) t est. Ouellette ex hibited all six clues, only four of which ar e

nece ssary to show intox ication. Mabe then arr ested Ouellette. Following her arr est, Ouellette was

rea d the DWI statutory

war ning a nd ref used to provide e ither a br eath or blood sample. After Ouellette was arr ested, Offic er L ittle conducte d a sear ch of Ouellette’ s vehicle. He discovere d an unlabeled pill bottle containing sever al differ ent ty pes of pills. Some of the pills

wer e identified as S oma and Dar vocet. Ouellett e ad m itted that the pi lls wer e hers, but stated t hat she had not take n them in the past month.

2On October 6, 2006, Ou ellette was char g ed by information with driving while

intox icated, second offe nse. See id. §§ 49.04(a) , 49.09(a)

. On April 1, 2008, her case was tried to

a jury , wh i ch fo und her g uilty as char g ed. On September 2, 2008, the trial court found the enhanc ement para g raph to be true and sentenc ed Ouellette to confine ment in the Wil liamson County J ail for 365 d ay s an d as s es s ed a $4,000 fine. The jail time and $3,200 of the $4,000 fine wer e probate d for a

period of f

ifteen months. This appea l followed.

Anal ysis I n her first point of err or, Ouellette arg ues that the evidenc e is f actua lly insufficient
to support her con v i ct i on. I n evalua ting the fac tual sufficie ncy of the evidenc e, we view all the evidenc e in a neutra l light and wil l s et aside the verdic t only if we are able to say , with some objective basis in the rec ord, that the conviction is clea rly wrong or manifestl y u n just beca use the g rea t weig ht and preponde ranc e of the evidenc e contra dicts the jury ’s verdic t. W atson v. State , 204 S.W .3d 404, 414-17 (Tex. Crim. App. 2006). We cannot conclude that a conflict in the evidenc e justifies a new trial simply beca use we disag ree with the jury ’s resolution of that conflict, and we do
not intrude upon the fac t-finder ’s role as the sole judge of t h e we i gh t and cre dibilit y of witness testimony

. See id. at 417; Fuentes , 991 S.W .2d 267, 271 (Tex. Crim. App. 1999). The fac t-finder may choose to believe all, some, or none of the testimony prese nted. Chambers v. State , 805 S.W .2d 459, 461 (Tex. Crim. App. 1 991); Bargas v. State , 252 S.W .3d 876, 888 (Tex. App.—Houston [14t h Dist.] 2008, no pet. ). I n our revie w, we discuss the evidenc e that, acc ording to appellant, undermines the jur

y ’s ver dict. Sims v. State , 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

3After citing to evidenc e “tending t o p ro v e intox ication,” Ouellette arg ues that the

video of the scene of the arr est p re s en t s conflicting evidenc e, showing that Ouellette was “ale rt and oriented,” that her speec h was “ver y clea r” and “not slurred,” and that t h er e were only a few instances of “slig ht sway ing.” Acc ording to O uellette, the “g rea t w eig ht and preponde ranc e of the evidenc e contained in this video rec ording so g rea tly outweig hs the evidenc e g iven by office rs Mabe and L ittle as to make the g uilty verdic t in this case manifestly unjust.” Even if the video appea

rs t o s how that, as Ouellette sug g ests, she had rea sonable
cont ro l o v er her conduct and senses, the overw helming evidenc e supports the conclusion that she was intox icated. Ouellette collided with a stopped car . Responding office rs detec ted the odor of alcohol on Ouellette’ s brea th, and she admitted to consuming some alcohol. Ouellette exhibi ted g lass y ey es, slurred speec h, irrational behavior , and sway ing. She initially ref

used to perf

orm all field sobriety tests. She eventua lly ag ree d to perf orm the Walk and Turn test, on which she exhibi ted four of eig ht clues of intox ication, only two of which a re r equire d to show intox ication. Ouellette also exhibi ted all six clues of intox ication on the Horizontal Gaze Ny stag mus test, only four of which

are require d to show intox ication. She re fused both a br eath sa mple and a blood test.

Even if Ouellette appea

rs to be “ale rt and o ri en t ed ” and in control of her speec h and movement on the video, the overw helming evidenc e supports the jur y ’s conclusion that she was int ox icated. Thus, fa ct u al ly sufficie nt evidenc e supports the j udg ment of conviction, and we

overr ule Ouellette’ s first point of err or. See W atson , 204 S.W .3d at 414-17. I n her second point of err or, Ouellette arg ues that the trial court err ed by instructing the jury :

4I ntox icated means not having the normal use of phy sical or mental fac ulties by rea son

of t he int roduct i o n o f alcohol, a controlled substance, a drug, a dang erous drug , or a combination of two or

more of those substances into the body

.

Acc ording to Ouellette, there was no evidenc e to support a conviction for being intox icated by way of drug consumption, and specific ally , there was no testimony —expert or otherwise—a s to whether the particula

r drug s found in Ouellette’ s vehicle could have an i n t o x icating eff ect or whether Ouellette’ s actions, demea nor, and conduct wer e consistent with being under the influence of drug s or under the influenc e of a

combination of drug s and alc ohol. When revie wing alleg ations of char g e err or, an appellate co u rt m u s t underta ke a two-step revie w: first, the court must deter mine whether err or actually exis ts in the charg e, and second, the court must deter mine whether sufficie nt harm resulted from the err or to require reve rsal. Abdnor v. S t a t e , 8 7 1 S.W .2d 726, 731-32 (Tex. Crim. App. 1994). When a timely objection is made, err or in the jury char g e require s reve rsal if the err or cause d “some harm.” Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g ). I n making t h i s deter mination, “the
actua l deg ree of harm must be a s s ay ed i n l i gh t of t he entire jury char g e, the state of the evidence, including the contested issues and we ight of probative e vidence , the arg ument of counsel and any other re levant informa tion revea led by the re cord of

the trial as a

whole.” Id. The issu e h e r e is whether the jury should have been char g ed that intox ication could be

cause d by a drug as a possible intox icant. The substance that cause s intox ication is not an element of driving while intox icated, see Tex. Penal Code An n . § 49.04(a) , and thus, the State can prove intox ication without pr oof of the ty pe of intox icant, see Gray v. State , 152 S.W .3d 125, 132 (Tex. Crim. App. 2004). Ouellette, howeve r, relies o n S mi thhart v. State , 503 S.W .2d 283

5(Tex. Crim. App. 1973), for the prop osition that some evidenc e of drug use, including reliable

expert testimony as to how that drug use would aff ect a persons actions, demea nor, or conduct, was require d befor e drug s could be included as a ty pe of intox icant in the jury char g e. Smithhart , decide d prior to the adoption of the legal s u ff i ci en cy standard of revie w, is inapplicable to this case . See Hooper v. State , 214 S.W .3d 9, 15 (Tex. Crim. App. 2007) (citing Jack son v. Virginia , 443 U.S. 307 (1979), an d d i s cu s s ing leg al s ufficie ncy revie w as set out by United S tates S upreme Court in that

case ). Under a leg al sufficie ncy standard of re view, we consider all evidenc e proper ly admitted at trial, including evidenc e her e t h at presc ription drug s wer e prese nt in Ouellette’ s vehicle and that Ouellette a dmitted that the medications wer e her s. Offic er Ma be testified a s follows: 1

When I ask ed her about the drug s, I think she said she hasn’t had them in over a month; and she said I ’ll take a blood te st to prove it. I said, so, y ou want to take a blood test? She said, y es, bec ause I haven’ t taken any of those drug s in a month. I s ai d , o k ay , y ou do understand, on the blood scre en, they are g oing to chec k fo r alcohol also. I

said, do y ou still want to take a blood test? She said, no. Although Ouellette told Offic er Mabe that she had not taken the drug s in the past month, there was evidenc e that the medications wer e in the car , wer e available to O uellette, and wer e presc ribed for her, and ther e wa s evidenc e that she had taken the medications in the past and she was intox icated
at t he ti me of her arre st. Thus, even if the State had be en re quired to prove the ty pe of intoxi cant, the char g e that included drug s as a possible intox icant was proper ly submitt ed to t h e j u ry . See W aller v. State , No. 05-09-00097- CR, 2009 Tex. App. L EXI S 9338, at *7-9 (Tex. App.—Dallas

At trial, Ouellette did not object to the admission of any evidenc e rela ting to the se drug s. 1 No objection wa s made until after the close of

evidenc e, at the c harg e conf ere nce. 6Dec

. 9, 2009, no pet.) (mem. op., n o t desig nated for publication) (holding no expert testimony

nece ssary to support conviction of driving while intox icated as a re sult of a drug or narc otic; evidenc e of a

rre sting off

icer ’s experienc e and obse rvations could support the c onviction). E v en i f t h ere was err or in the jury char g e based on its inclusion of drug s as possible intox icants, there was no harm. See Almanza , 686 S.W .2d at 171. I t is undisputed that the

rec og nition of alcoholic intox ication require s no specific expertise, and as discussed above, fac tually sufficie nt evidenc e supports Ouellette’ s convicti o n of driving while intox icated by rea son of her consumption of alcohol. Ac cording ly , we ove rrule O uellette’s se cond point of er ror. Having overr

uled Ouellette’ s points of err or, we aff irm the judgme nt of conviction.

Motion for Rehearing

Appellant Marie L ouise Ouellette has filed a Motion for Rehea ring comp l aining that the panel “fa iled to conduct a proper fac tual sufficie ncy revie w,” and arg uing that “it is not clea r that the Court actua lly rev i ew ed the videotape.” Despite the fac t that Ouellette did not include the videotape in the re co rd, the Court order ed the videotape from the district court cler k and revie wed it prior to issuing the orig inal opinion in this case . Ouellette arg ues that the videotape, by itself, is conclusive e vidence that she had “ the normal use of her mental and phy sical faculties” at the time of her arr est. We rec og nize that the videotape does not evidenc e any sever e lack of control of Ouellette over her conduct and senses. Howeve r, the videotape is not conclusive on the question of whether she had rea sonable control over her conduct and senses. The evidenc e on the videotape is subjec t to more than one r easona ble interpre tation with respec t to Ouellette’s leve l of control of

7her conduct and senses. When viewed toge ther with the other evidenc e in the case , there is sufficie nt

evidenc e to support the jury ’s ver dict.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med on Motion for Rehea ring Filed: Aug ust 27, 2010 Do Not Publish

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