1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-03-0481-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JULY 25, 2005

______________________________ TONY THEODORE GARCIA, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 316 TH DISTRICT COURT OF HUTCHINSON COUNTY ; NO. 9086; HONORAB LE JOHN W . LAGRONE , JUDGE

_______________________________ Before REAVIS and CAMPBELL, JJ. and BOYD , S.J. 1
MEMORAND UM OPINION Upon a plea of

not guil ty, appel lant Ton y Theodo re Garciawas conv icted by a jury of intoxication manslaughter and punishment was assessed bythe trial court at 20 yea rs confinem ent. Presenting two points of error, appellant contends (1) he was harmed by2

counsel’s ineffectiveness in stipulating to his blood alcohol test results and fail ing to object to a purported expert witness’s testimony regarding retrograde extrapolation, and (2) the evidence was leg ally and factuall y insuffi cient to support h is convi ction. Weaffirm.
After 9:00 p.m. on September 26, 2002, appellant and Jimmy Diaz drank beer and appellant smoked marihuana at Diaz’s house. According to Diaz, he and appellant each drankseven to eight beers, appella nt slept approxi mately fo ur to four and one-half hours, and the nex

t morning each le ft the hou se in sep arate cars . At appr oximatel y 7:50 a.m

. , Kayla Dawn Cox was fatal l y injured when her car was hit from the rear by the car d riven byappellant

at the intersection of Highway 136 and Deahl Road in Hu tchinson County. By
cou nt on e, the Grand Jury indicted appellant for intoxication manslaughter and by count two for recklessly causing the death of the victim. Upon con clusion of the ev idence, the court submitted the two counts to t h e jury v ia the charge and also submitted a charge of criminal ly negli gent homi cide. Byhis first poin t of error, appellant contends he was harmed by counsel’ s ineffectiveness in stipulating to his blood alcoho l test results and failing to object to a purported expert witness’s testimony regarding retrograde extrapolation. We disagree.
Our review of

representation bydefense counsel is highly deferential, Tong v. State, 25 S.W.3d 70 7, 712 (T ex.Cr.Ap p. 2000), cert. denied , 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), and requires that we engage a “strong presumption” that counsel’s actions fell within the wide range of reasonab ly profes sional a ssistance. See Strickland v.3

Washington, 466 U.S.668, 687 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Also, appellant has the burden to overcom e the pre sump tion t hat, under the circumstances, the challenged action might be considered sound trial strategy. Chambers v. Sta te, 903 S.W.2d 21, 33 (Tex.Cr.A pp. 1995 ). At trial, witness Rhoden, a licensed EMT, testified he could smell alcohol on appellant

six feet away and, in his opin ion, appellant was in toxi cated. Witness Espino observed appellant stumbling around, smelled alcoho l on him, and stated appellant was “most definitely” intoxicated. Also, she testified app ellant admitted he had stayed up a ll nightpartying. In addition, one DPS trooper testified appellant had a strong smell of alcohol and Trooper Vennell testified that, in his opinion, appellant was intoxicated even while he
was in the emergency room at Northwest Texas Hospital. Because a non-expert witness mayexpress an opinion that a driver was intoxicated , see Smithhart v. State, 503 S.W.2d 283, 285 (Tex.Cr.App. 1973), considering the non-expert witness testimony available to the State, we are unable to conclude counsel’ s performance could not be cons idered sound trial strategy. Point of error one is overruled. By h is second point of error, appellant contends the evide nce was legally an d factuall y insuffici ent to sup port the convictio n. Speci fically, he argue s the Sta te failed to showhis intoxication was the victim’s cause of death as required by section 49.08(2) of the Texas Penal Code Annotated (Vernon 2 003). We disagree.4

When both the legal and factual sufficiency of the evidence are chall enged, we must firstdetermine whe ther the evidence is legally sufficient to supp ort the verdict. Clewis v. State, 922 S.W.2 d 126, 13 3 (Tex.C r.App. 19 96). It is a fu ndamenta l ru le of criminal law thatone cann ot be con victed of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U .S. Const. amend. XIV; Tex. Cod e Crim . Proc. An n. art. 38 .03 (Vern on Supp. 2004-05 ); Tex. P en. CodeAnn. § 2.01 (Ver non 2003 ).
In con ducting a legal sufficiency review, we ex amine the verdict, after viewing th e evidence in the l ight most favorabl e to the prosecution, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Burden v . St ate, 55 S.W .3d 60 8, 612-13 (Tex. Cr.App. 2001). This stan dard i s the
sam e in bo th di rect

and ci rcumst anti al ev ide nce case s. Burden , 55 S .W.3 d at 61 2-13 . In measuri ng the s uff ici ency of the e vide nce t o sust ain a convi cti on, we m eas ure the elem ents of the of fense as def ined by a hypo thetica lly corre ct jury ch arge . Malik v. Stat e, 953 S.W.2d 234, 240 (Te x.Cr.App . 1997). This is done by consi dering a ll the ev idence t hat was b efore the jury—whether proper or improper—so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996 ). A s an appe llate court, we may not sit as a thirteenth juror, but must uphold the jury' s verdict unless it is irrational or unsupported by more than a “mere modicum” of evidence. Moreno v. State, 755 S.W.2 d 866, 86 7 (Tex.C r.App. 19 88).5

After conducti ng a leg al suffic iency rev iew unde r Jackson , we may proceed with a factual sufficie ncy review. Clewis , 922 S.W.2d at 133. As an appellate court, we view all the evidence without the prism of “in the light most favorab le to the prosecution” and set aside the verdi ct only i f it is so contrary to the overwhe lming we ight of th e eviden ce as to be clearly

wrong an d unjust. Johnson v. State, 2 3 S.W.3d 1 , 9 (Tex. Cr.App. 2 000). We mustdetermin e after co nsiderin g all the evidence in a ne utral li ght, whet her the ju ry was rationallyjustified in finding guilt beyond a reason able doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). It is the exclusive provi nce of the j ury to determine the credibil ity

of the witnesses and the weight to be gi ven their testimony, and unl ess the re cord clearlydemonstrates a dif ferent result is appropriate, we must defer to the jury’s determina tion. Johnson , 23 S.W.3 d at 8.
Before determining whether the evidence is su fficient to support appellant’s conviction, we must review the essential elements theState wa s require d to prove. In this regard, th e intoxi cation ma nslaugh ter statute provide s in part : (a) A person commits an offense if the person: (1) operates a motor vehicle in a public place . . . ; and (2) is intoxicated and by reason of

that intoxication causes the death of another by accident or mistake.
Tex. Pen. Code Ann. § 49.08. As presented i n Glause r v. S tate, 66 S.W.3d 307, 313 (Tex.App.--Houston [1stDist.] 2000, pet. ref’d), here too, appellant correctly contends the6

S t ate must prove that his intoxication, not just operation of the ve hicle, caused the fatal accident

. The accident occurred at 7:50 a.m., but appellant’sblood sample was not taken until 10:11 a.m. on September 27, 2002. By his argument, appell ant does not suggest he was notoperatin g his vehicle when it hit the car driven by the victim from the rear or that the accidentwas caused b y poor vi sibilit y or road or traffic

conditi ons. Instead, he focuses his challenge on his al leged state of intoxication at the time of the acci dent. In this regard, appellant

contends the toxicology lab report showi ng hi s alcohol-intoxication level to be belowthe legal level of intoxication is controlling. Accordingly, we will reviewthe sufficiency of the evi dence in the context of app ellant’ s content ion. Appellant

overlooks the testimony of witness Espino, a teacher at Borger ISD, who testified about her

observat ions at t he sceneof the accident. Accordin g to her testimony which was admitted without objection, she stated, that in her opinion, appellant was most definitelyintoxi cated wh en she ta l ked with him at th e scene of the acci dent. Mor eover, according to the witness, appellant stated “Well, this is what I get for staying up all night at Jimmy’ s house a nd partying.” The jury having been properly charged, the testimony of Espino was sufficient

evidence from which the jury could find beyond a reasonable doubt thatappellant caused the death o f the vict im by rea son of in toxicati on. Concluding the evidence is legally

sufficie nt to supp ortthe conviction, we must now determine whether it is factua lly suffi cient. Johnson , 23 S.W.3d at 11.7

In our analysis of appellant’s first point, we no ted Texas law does not require that appellant’s state of intoxication be established by sci entific evidence or expert testimony. Instead, the opinion of a non-expert witness may b e admitted to establish that a person is intoxicated. Smithh art , 503 S.W.2d at 285. Also, in discussing appel lant’s first point, we reviewed the relevant testimony of two DPS troopers, an EMT, and w itness Es pino, menti one d above. All of these witnesses testified that in their opinion, appellant was intoxicated when they met with him after the accident. Noting that appellant does not direct
our attention to any contrary evidence, because the jury’s verdict relied on its assessment
o f the credibility of the witnesses, we defer to its find ings and hold the evide nce wa s factuallysufficie nt t o support the jury’s verdict that the victim’s death was caused by appellant’s intoxication. Appellant’s second point of error is overruled. Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis Justice Do not publish.