## NUMBER 13
- 1 1
- 00 398
- CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

- EDINBURG

DARRELL GENE OLSOVSKY , A ppellant ,

v . THE STATE OF TEXAS , Appellee.

On appeal from the 2 4 th District Court of Jackson County, Texas.



## MEMORANDUM OPINION
Before Justices Benavides , Vela, and Perkes Memorandum Opinion by Justice Perkes Appellant, Darrell Gene Olsovsky, appeals his conviction for felony driving while intoxicated, a third

- degree felony, enhanced at the punishment phase of trial to a
habitual

- felony offense by three prior felony convictions

. See T EX

. P ENAL C ODE A NN

. § § 12.42(b), 49.09(b) (West 2011). Following a jury trial, appellant was found guilty , and
the trial court sentenced him to a term of fifty years of confinement in the Texas Department2

of Criminal Justice, Institutional Division. 1 By one issue, a ppellant claims the evidence is
insufficient to sustain his conviction because no eyewitness testified to seeing appellant operate a motor vehicle on a public roadway while intoxicated. We affirm.

I. FACTUAL AND PROCEDUR AL BACKGROUND On March 26, 2010, Depa rtment o f Public Safety Trooper Brandon Curlee responded to single car accident near Edna, Texas. A t 8:12 p.m ., t he police department received a call concerning the accident

. At 8:43 p.m., Trooper Curlee arrived at the accident site and
found a van sitting in a cornfield , registered to a ppellant with damage to the right front wheel.
A ppellant was not at the scene when Trooper Curlee arrived. Trooper Curlee inspected the van and detected a strong smell of alcohol. H owever,
h is inspection of the v an yielded no alcoholic beverages or con tainers. The hood of the van

1 This fifty year sentence is the result of two statutes elevating appellant’s sentence from the normal range associated with the offense of driving while intoxicated. Appellant’s sentence results from (1) conviction of felony driving while intoxicated an d (2) being categorized as a habitual felony offender. A person commits the offense of felony driving while intoxicated when (1) the party was intoxicated while driving, and (2) the party has at least two prior convictions for “any other offense related” to driving while intoxicated. T EX

. P ENAL C ODE A NN

. § 49.09(b)(2) (West 2011)

. Under such circumstances, the party is guilty of a felony of the third degree. Id. “Any other offense” includes driving while intoxicated, as codified in section 49.04(a). Id. at § 49.09(c)(1)(A). Therefore, to establish felony driving while intoxicated, the relevant inquiry is whether the party was driving while intoxicated under t he facts before the court and whether the party has two previous convictions for driving while intoxicated. Id. at § 49.09(b)(2). Before trial, appellant pled true to two previous driving while intoxicated convictions in 1980 and 1985. Therefore, appella nt did not contest the requisite prior convictions necessary to satisfy the felony enhancemen t in Penal Code s ection 49.09(b)(2). Those two prior convictions , combined with this current conviction , result in the offense of felony driving while intoxicated , a third

- degree felony. At the punishment phase of trial, the trial court enhanced that third

- degree felony with three previous felony convictions and categorized appellant as a habitual felony offender. The punishment range for habitual felony offende rs is elevated to twenty

- five years to life in prison. Id. § 12.42(d). A habitual felony offender is one who has committed two previous felonies in addition to the current felony conviction. Id. The two previous felonies must have occurred at separate times, with the second felony occurring after the conviction for the first felony was final. Id. Before the punishment hearing, appellant pled true to the following five additional convictions: driving while intoxicated in 1981 and 1992, felony driving while intoxicated in 1984 and 1992, aggravated perjury (felony) in 1984. The three previous felony convictions in 1984 and 1992, combined with the current conviction of a third

- degree felony, made appellant a habitual felony offender as defined by sectio n 12.42(d). See id.3

was warm to the touch, which Trooper Curlee viewed as an indication that the accident was relatively recent. Trooper Curlee observed skid marks on the road and tire tracks on the ground that corresponded to the position of the wrecked van. After learning a ppellant owned the van, Trooper Cu rlee went to a ppellant’s mother ’s house (Evelyn Olsovsky), which was approximatel y one - half mile from the accident site. Upon arrival at a ppellant’s mother ’s house, Trooper Curlee asked appellant’s mother
if she knew of a ppellant ’ s whereabouts. After replying she did not know, she gave Trooper
Curlee permission to search her house. He called for back

- up to aid in the search, which commenced when Edna Police Officers Jeff Tipton and David Merritt arrived. While the
officers were se arching the premises, a ppellant emerged from a white car that was par ked in
the driveway , and this was c aptured on the camera of Trooper Curlee’s police cruiser

. Once outside the car , a ppellant moved into a shed on the side of the house and later

re - emerged to defecate in the back yard. Officer Tipton noticed a ppellant’s movement and called out, at which po int a ppellant pulled up his pants and ran back into the shed. Trooper
Curlee thereafter apprehended a ppellant.
Duri ng questioning, a ppellant admitted to being the sole occupant and driver of the

van

. I n the presence of two officers, a ppellant also admitted to consuming alcohol, specifically whiskey. A ppellant stated he had not consumed any alcohol since before the
accident. Trooper Curlee testified that a ppellant smelled strongly of alcohol, his speech
was “thick

- tongued,” and his ey es were “red and glassy.” He administere d a field sobriety

test . A ppellant failed the “ horizontal gaze nystagmus test ” and refused to submit to a

one - leg stand and a walk

- and

- turn test. At 9:24 p. m., Trooper Curlee and a ppellant arrived4

at the hospital, where a ppellant submitted to a blood test

. The test revealed a blood alcohol
level of 0.29. Delton Spree, a friend of appellant, testified that on the day of the accident, a ppellant
had been at Spree’s house which is about four miles from the accident si te. He testified
that a ppellant had been drinking and may have been in an intoxicated state. He also testified, however, that when a ppellant left his house around 8:00 p.m., appellant was not
intoxicated.
T he jury found a ppellant guilty of felony drivin g while intoxicated

. A ppellant elected
to have the trial court assess punishment . Appellant pled true to his prior convictions . The
trial court sentenced a ppellant to fifty years in prison. This appeal followed.
II. ANALYSIS AND DISCUSSION By one issue , a ppellant claims the evidence is insufficient to sustain a conviction of felony driving while intoxicated. Specifically, a ppellant argues that the State was required to present eyewitness testimony that he drove while intoxicated

. Because the State relied solely on circumstantial evid ence, a ppellant argues the evidence is insufficient to sustain his
conviction

. 2 We disagree.
A. Standard of Review for Sufficiency The analysis in Jackson v. Virginia is the standard used to determine whether evidence is sufficient to uphold a criminal judgment. See Jackson v. Virginia, 443 U.S. 307,
318

– 19 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.) ; Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim . App. 2000) (en banc). The question

2 On appeal, appellant does not contest the requisite prior convictions to satisfy the felony enhancement in Penal Code Section 49.09(b)(2). See id. § 49.09(b)(2). The only issue presented is whether the evidence shows he was driving while intoxicated on this occasion.5

before the Court is whether, in viewing the facts from the perspective most favorable to the verdict, a rational jury could have found each required element of the crime beyond a
reasonable doubt. Jackson , 443 U.S. at 319. The reviewing court may not substitute its own factual findings for those of the jury. Wicker v. State , 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). Only the trier of fact has the ability to make judgments of credibility and the relative strength of evidence. Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). As trier of fact, a jury is free to emphasize or disregard any portion of testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc). To respect the jury’s role as fact finder, the reviewing court will assume the jury resolved conflicting evidence in favor of the prevailing party. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (en banc). This assumption dictates that the reviewing court must cons true all facts in favor of the prevailing party, as required by the Jackson v. Virginia standard. McDuff v.
State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (en banc) (citing Jackson , 443 U.S. at 319). This Court will not overturn a verdict due to insuf ficiency unless the supporting evidence is irrational or unable to support proof beyond a reasonable doubt. See Matson v.
State , 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (en banc).
B. The Elements of Driving While Intoxicated and the Sufficiency of the Ev idence We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State , 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof, or unnecessarily restrict the State’s theories of liability , and adequately describes the particular offense for which the defendant6

was tried. Id

. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. T EX

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. § 49.04(a). A person is intoxicated if that person does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances or any other substance into the body or by having an alcohol concentration above 0.08 or more in his breath, blood, or
urine. I d. at § 49.01(2)(A)

– (B) (West 2011 ). The State may rely solely upon circumstantial evidence to establish a conviction for driving while intoxicated

. Kuciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim . App. 2010). Both direct and circumstantial evidence are probative when establishing guilt, and the reviewing court draws no distinction between the two on appeal. Id. Th e evidence, either direct or circumstantial, must illustrate a “temporal link” between the intoxication and the act of driving the vehicle. Id. For a question of sufficiency, the issue is whether the evidence would allow the trier of fact to find, beyond a reasonable doubt, that a temporal link exists.
Scillitani v. State , 343 S.W.3d 914, 917 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref'd).
In Kuciemba , the driver was convicted of driving while intoxicated following a single
vehicle accident. Kuciemb a , 310 S.W.3d at 461. Police found a truck in a roadside ditch, with damage indicating the truck had rolled over. Id. The driver, still bleeding from minor head injuries, exited the vehicle as police arrived. Id. A subsequent blood test on blood
drawn at the scene revealed a blood alcohol level of 0.214. Id. There was no direct
evidence that the driver had driven the car while he was intoxicated. Id. The Court of Criminal Appeals relie d on circumstantial evidence to find the evidence sufficient to sustain
the conviction

. Id. at 463. Specifically, the Kuciemba Court used the following to support7

the inference that the driver was intoxicated while driving the truck: (1) the driver was
intoxicat ed at the scene of the accident; (2) the accident was a single vehicle collision ; (3) the driver did not apply the brakes as the road lacked signs of skid marks ; (4) the driver was seen exiting the truck and was still bleeding, indicating the rollover was recent ; and (5) the driver had a high blo od alcohol content, indicating he had been intoxicated for a while. Id.
at 462

– 63. Based on th is circumstantial evidence, the Kuciemba Court found that the trier of fact could reasonably determine beyond a reasonable doubt that the driver was
intoxicated at the time of the accident. Id. at 463.
In Scillitani , the driver was involved in a single car accident when he ran off the road

an d hit a fence pole

. Scillitani , 343 S.W.3d at 91 5

– 1 6. When the police arrived, the driver admitted to having driven the vehicle at the time of the accident. Id. at 917. After the driver exhibited signs of intoxication during the field sobriety tests, t he officer arrested the driver
and administered two breath tests. Id. at 916. Those tests revealed a breath alcohol
concentration of 0.135 and 0.133 , respectively , within two hours of the time law enforcement was dispatched to the accident scene

. Id. Like Kuciemba , the driver had not applied the brakes, indicating intoxication while driving. Id. at 920.
As in Kuciemba and Scillitani , appellant’s accident involved one vehicle, which could
indicate driving while intoxicated. A ppellant’s van smelled strongly of alcohol, as did the
truck in Kuciemba

. Like the defendant in Scillitani , a ppellant made incriminating admissions to the police. Specifically, a ppellant admitted to being the driver and to not consuming alcohol since before the accident. Spr ee testified that a ppellant consumed alcohol while at the Spree residence. Additionall y, a ppellant’s blood alcohol level of 0.29 , which is several times the legal limit, was significantly higher than the blood alcohol levels8

detected in Kuciemba and Scillitani

. Appellant’s blood test was taken approximately an
hour and a half after the accident. The high bloo d alcohol level indicates that a ppellant was
intoxicated for quite a while

. See Kuciemba , 310 S.W.3d at 463. 3

Additional ly, a ppellant left his van on the side of the road, stayed inside a stationary car when police arrived, and ran away to hide in a shed after police saw him. A ppellant’s
actions were circumstantial evidence of guilt and are probative to show a consciousness of guilt for the offense of driving while intoxicated. See Barlett v. State , 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) ; see also Hyde v. State , 846 S.W.2d 503, 505 (Tex. App.

— Corpus Christi 1993, pet. ref'd. ) (finding “ any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ m ay be received as” circumstantial evidence)

. T he record contains sufficient evidence to sustain a conviction for f elony driving while
intoxicated

. Appellant’s issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.

Gregory T. Perkes Justice Do not publish. T EX

. R. A PP

. P . 47.2(b).
Delivered and filed the 21st day of June , 201 2

.

3 This inference for high blood alcohol content is distinguishable from the Court of Criminal Appeals’ analysis in Mata v. State

. See Mata v. State , 46 S.W.3d 902, 910 (Tex. Crim. App. 2001 ). Mata established the factors necessary to allow an expert witness to testify on retrograde extrapolation (analysis of the alcohol absorption rate for an individual). State v. Mechler , 153 S.W.3d 435, 438 (Tex. Cri m. App. 2005) (citing Mata , 46 S.W.3d at 910). Mata did not address whether evidence of blood alcohol content is admissible in the absence of testimony on retrograde extrapolation. Mata , 46 S.W.3d at 910.