NUMBER 13-13-00597-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

TORIBIO QUINTERO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 147th District Court

of Travis County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Benavides

By two issues, appellant Toribio Quintero challenges his conviction for felony

driving while intoxicated, a third degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 

49.09 (West, Westlaw through Ch. 46 2015 R.S.). Quintero challenges: (1) the 

sufficiency of the evidence and (2) the admissibility of a warrantless blood draw. We 
2

affirm.

I. BACKGROUND1

At a jury trial, Gloria Pineda testified that on January 29, 2012, she called 911 to 

report a reckless driver. She told the operator she observed a vehicle swerving on the 

road. When Pineda pulled up next to the vehicle, she observed a man who was “drinking 

something in a paper sack” and thought he was drunk. Pineda followed the vehicle until 

it came to a stop, and she notified the 911 operator where the vehicle was located. 

Officer Steven Constable with the Austin Police Department was the first to arrive 

at the scene and made contact with the vehicle. Officer Constable found Quintero in the 

driver’s seat, with the vehicle off, but the keys in the ignition. Quintero told Officer 

Constable that he had been “cruising.” According to Officer Constable, Quintero had 

slurred speech and an odor of alcohol about him. Quintero stated to Officer Constable 

that he had drank six beers. Officer Constable was able to locate three cans of beer 

outside of Quintero’s vehicle that were empty but still cold to the touch and two beer cans 

inside the vehicle, one empty and one unopened, that were both still cold to the touch. 

Quintero stated to Officer Constable that he was hard of hearing and Officer Constable 

testified that Quintero’s answers did not always relate to the questions he asked. 

Officer Lawrence Nicoletti, also with the Austin Police Department, testified that he 

was the DWI officer involved in this case and performed the Standardized Field Sobriety 

Tests on Quintero at the scene. Officer Nicoletti stated he noticed that Quintero had 

 

1 This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization 

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 

Ch. 46 2015 R.S.).

Quintero was granted an out-of-time appeal by the Court of Criminal Appeals when the trial court 

failed to appoint an appellate attorney following his trial counsel’s request at sentencing. 
3

bloodshot, glassy eyes, slurred speech, and an odor of alcohol. Quintero stated to 

Officer Nicoletti he had consumed five beers. Officer Nicoletti testified Quintero 

displayed multiple clues on the field sobriety tests that indicated signs of intoxication. 

Officer Nicoletti and the other officers discussed if they would be able to prove that 

Quintero was driving since none of them observed Quintero driving. However, the 

officers determined they could prove the driving element based on Pineda’s statements 

and Quintero’s own admission of “cruising.” Quintero refused a breath test and Officer 

Nicoletti decided to draw Quintero’s blood based upon Quintero’s previous convictions

for driving while intoxicated. See TEX. PENAL CODE ANN. §49.04; TEX. TRANSP. CODE 

ANN. § 724.012 (West, Westlaw through Ch. 46 2015 R.S.). 

The blood evidence was admitted at trial without objection from Quintero’s trial 

counsel.

2

 Austin Police Department chemist Glenn Carl Harbison testified as to the 

results of the blood draw evidence. He stated the test showed Quintero’s blood 

contained .165 grams of ethanol per 100 milliliters of blood, or about two times the legal 

blood alcohol content limit of .08 in the State of Texas. See TEX. PENAL CODE ANN. § 

49.01. 

Corporal Ryan Huling of the Austin Police Department was called as a witness by

the defense. He was also at the scene and spoke to Pineda by telephone. Corporal 

Huling stated Pineda had told him she did not want to return to the scene, meet with 

officers, or participate with the investigation any further. Corporal Huling also testified 

that Pineda just wanted to get Quintero off the streets and when she was told she needed 

 

2 The record also shows that Quintero did not file a pre-trial motion to suppress, nor did he urge a 

motion to suppress at trial. 
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to identify Quintero, Pineda told him “well, then he wasn’t driving.” Corporal Huling also 

testified that it was common for witnesses to disappear and not want to be involved after 

initial contact. Corporal Huling stated Pineda seemed confused about the location she 

saw Quintero driving in. However, he later admitted he was trying to get information out 

of Pineda and she was answering questions to confirm Quintero’s general location. 

Corporal Huling also admitted that Pineda was the only person who could place Quintero 

behind the wheel driving the vehicle. 

Quintero also testified in his defense. He admitted to drinking alcohol but said it 

was much earlier in the day at a local park. Quintero admitted during cross-examination 

that he was intoxicated at the time the officers arrived. However, Quintero stated he was 

in his vehicle to sleep off his intoxication and was going to return home when he felt sober, 

but that he had not been driving. Quintero also stated that he believed Pineda was 

“making up” her story because he had seen a vehicle illegally dumping trash earlier in the 

day and honked at them, and the vehicle was a similar make and model of the vehicle 

Pineda described herself being in. 

The jury found Quintero guilty of felony driving while intoxicated. See TEX. PENAL 

CODE ANN. §§ 49.04, 49.09. Quintero stipulated to two prior driving while intoxicated 

convictions. The indictment also contained enhancement paragraphs of two other prior 

felony convictions, which elevated Quintero’s range of punishment to that of a habitual 

offender. See Id. § 12.42. The trial court sentenced Quintero to twenty-five years 

imprisonment in the Texas Department of Criminal Justice—Institutional Division. This 

appeal follows.
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II. SUFFICIENCY CHALLENGE 

By his first issue, Quintero challenges the sufficiency of the evidence to sustain his 

conviction for felony driving while intoxicated based on Pineda’s testimony. 

A. Standard of Review and Applicable Law

In reviewing the sufficiency of evidence to support a conviction, we consider all of 

the evidence in the light most favorable to the verdict and determine whether, based on 

that evidence and reasonable inferences therefrom, a rational fact finder could have found 

the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 

S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. 

App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see also Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the 

evidence in the light most favorable to the verdict, we defer to the jury’s credibility and 

weight determinations because the jury is the sole judge of the witnesses’ credibility and 

the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. “It is also the 

exclusive province of the jury to reconcile conflicts in the evidence.” Wesbrook v. State, 

29 S.W.3d 103, 111 (Tex. Crim. App. 2000). It is unnecessary for every fact to point 

directly and independently to the guilt of the accused; it is enough if the finding of guilty 

is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d 

at 768. Therefore, in analyzing legal sufficiency, we determine whether the necessary 

inferences are reasonable based upon the combined and cumulative force of all the 

evidence when viewed in the light most favorable to the verdict. Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007). Our review of "all of the evidence" includes 

evidence that was properly and improperly admitted. Id. When the record supports 
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conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the 

prosecution and therefore defer to that determination. Id. Direct and circumstantial 

evidence are treated equally in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt. Id.

The elements of the offense are measured 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 defendant was tried. 

Id. Under a hypothetically correct jury charge, Quintero is guilty of driving while 

intoxicated if he was intoxicated while operating a motor vehicle in a public place. See 

TEX. PENAL CODE ANN. § 49.04.

B. Discussion

Quintero argues exclusively that the evidence was insufficient based on Pineda’s 

testimony alone. Both Pineda and Quintero testified at trial. The jury, as the sole judge 

of the credibility of the witnesses, made the determination that Pineda’s testimony was 

credible. The record shows that Pineda was the only person who actually saw Quintero 

driving that evening. The officers involved in Quintero’s arrest testified that they did not 

see him driving. Officer Nicoletti had a discussion on his dash camera video with other 

officers to make sure they have enough evidence to support the element of “operating a 

motor vehicle.” Even though Pineda was reluctant to cooperate on the night of 

Quintero’s arrest, she testified at trial and was able to identify Quintero. Pineda was 
7

subject to cross-examination by Quintero’s trial counsel who addressed many of the

discrepancies Quintero complains about regarding Pineda’s testimony. 

Additionally, Quintero testified in his own defense. He relayed his version of the 

events of that day: that he was at the park drinking; he went to his car to “sober up” 

before driving; and that he did not operate this vehicle after becoming intoxicated. The 

jury makes the determination as to who to believe and find credible. Brooks, 323 S.W.3d 

at 899. Viewing the evidence in a light most favorable to the verdict, the jury believed

Pineda’s testimony. See Winfrey, 393 S.W.3d at 768. It is the jury’s exclusive province 

to decide which witness to believe and disbelieve. See Wesbrook, 29 S.W.3d at 111. 

As a result, we find the testimony of Pineda and additional evidence was sufficient to 

support the jury’s verdict. We overrule Quintero’s first issue. 

III. ADMISSIBILITY OF BLOOD DRAW EVIDENCE 

By his second issue, Quintero asserts that because he revoked his implied consent 

to the warrantless seizure of his blood and there were no exigent circumstances, the trial 

court committed fundamental error in admitting the blood analysis results into evidence. 

A. Preservation of Error

“In order for a defendant to preserve his complaint for appellate review, he must 

present to the trial court a timely objection, request, or motion stating the specific grounds 

for the ruling he wishes.” Lyssy v. State, 429 S.W.3d 37, 40 (Tex. App.—Houston [1st 

Dist] 2014, no pet.) (citing TEX. R. APP. P. 33.1(a)). “An appellant’s issue must 

correspond with the objection he made at trial.” Id.; see Broxton v. State, 909 S.W.2d 

912, 918 (Tex. Crim App. 1995). “‘An objection stating one legal theory may not be used 

to support a different legal theory on appeal.’” Id. (citing Johnson v. State, 803 S.W.2d 
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272, 292 (Tex. Crim. App. 1990)). “This is true even if the alleged error implicates 

constitutional guaranties.” Id. “‘The purpose of requiring a specific objection in the trial 

court is twofold: (1) to inform the trial judge of the basis of the objection and give him 

the opportunity to rule on it [and] (2) to give opposing counsel the opportunity to respond 

to the complaint.’” Id. (citing Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 

2000)). “Therefore, if a party fails to properly object to constitutional errors at trial, these 

errors can be forfeited.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); 

Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). “Unless a litigant 

exercises his option to exclude evidence it is to be admitted.” Marin v. State, 851 S.W.2d 

275, 278 (Tex. Crim. App. 1993) (en banc), overruled on other grounds, Cain v. State, 

947 S.W.2d 262, 264 (Tex. Crim. App. 1997). 

 As a threshold matter, the State argues that Quintero did not preserve his right to 

argue on appeal for the first time about the warrantless blood draw. See Wilson v. State, 

311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) (“Preservation of error is a systemic 

requirement on appeal.”). We agree. 

B. Discussion

In order to preserve error for our review, Quintero needed to object to the 

admission of the evidence during trial or urge a motion to suppress either pre-trial or 

during trial. See Krause v. State, 243 S.W.3d 95, 102–03 (Tex. App.—Houston [1st 

Dist.] 2007, pet. ref’d) (holding that an oral motion to suppress can provide sufficient 

notice to the trial court to preserve appellant’s complaint on appeal). Here, Quintero

neither made an objection to the admission of the blood evidence at trial or in any pretrial motion to make the trial court aware of any issues he had regarding the blood 
9

evidence admissibility. As a result, we hold that Quintero’s issue is not preserved for our 

review. See TEX. R. APP. P. 33.1(a); Wilson, 311 S.W.3d at 473–74. We overrule 

Quintero’s second issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

27th day of August, 2015.