Opinion filed October 15, 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 13

- 00305

- CR

__________ JOSEPH LEON CARRASCO , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 3 85 th District Court
Midland County, Texas
Trial Court Cause No. CR41454

M E M O R A N D U M O P I N I O N The jury found Joseph Leon Carrasco guilty of the offense of driving while
intoxicated while he had a child as a passenger in the vehicle

. 1 The jury assessed punishment at confinement for two years and a fine of $2,500
, but it recommended community supervision. The trial court accepted the recommendation of the jury, suspended the sentence, placed Appellant on community supervision for five years,

1 See T EX

. P ENAL C ODE A NN

. § 49.045 (West 2011 ).2

and imposed the fine of $2,500. Appellant challenges , in a single issue, the sufficiency of the evidence

. We affirm.
I. Evidence at Trial
Blake Bush , an experienced and certified peace officer with the Midland
P olice D epartment , initiated a traffic stop of Appellant because d efective equipment on Appellant’s vehicle prevented Officer Bush from reading the vehicle’s license plate number

. Appellan t did not immediately stop his vehicle, despite several opportunities to do s o. Eventually, Appellant stopped his vehicle
, and Officer Bush stopped his patrol car as well.
Officer Bush then approac hed Appellant’s vehicle

. Appellant’s daughter,
who was e ight years old, was in the vehicle with Appellant. Once at the driver’s door of Appellant’s vehicle, Officer Bush “detected the odor of alcoholic beverage emanating f

rom the driver.” Officer Bush later claimed the odor of al cohol was strong. He “noted t hat, from [his] position contacting [Appellant], there was an
alcoholic

- beverage can in the front compartment of the vehicle. ” Officer Bush
also “ noticed the blood shot, glassy eyes.” The alcoholic beverage, an eighteen

ounce can of Miller Lite, was in the front passenger seat within arm’s reach of Appellant

. Officer Bush said that it was “cold to the touch as if it had been

r ecently purchased.” When Officer Bush asked, Appellant denied that he had been drinking and refused to do any f

ield sobri ety tests

. Officer Bush ask e d Appellant to exit Appellant’s vehicle
, and Officer Bush testified that Appellant appeared nervous but
did not stumble. On cross

- examination, Officer Bush admitted that Appella nt did not speed, drive erratically, ch ange lanes improperly, or slur his speech. But Officer Bush concluded, based on the totality of th e circumstances, that “[Appellant] was intoxicated while operating a vehicle,” and he arrested Appellant.
Officer Bush then took Appellant to Midland Memorial Hospita l for a blood draw.3

Kei tha Parrott

- Hammerman, a nurse, drew a sampl e of Appellant’s blood at
11:00 p

. m

. , two hours and twenty minutes after the initial stop. She also testified that Appellant smelled of al cohol at the hospital.
Dennis Hambrick
, a chemist with the Te xas Department of Public Safety,
tested Appellant’s blood sample

. The tests yielded five results that indicated Appellant’s blood alcohol concentration. The lowest figure, which he reported to
the police, indicated that Appellant’s blood contained 0.08 grams of alcohol per
100 milliliters of blood. The other four tests 2 indicated blood alcohol concentration levels of 0.0917, 0.0914, 0.0897, and 0.0893 grams of alcohol per 100 milliliters of blood. Hambrick acknowledged that he did not know whether Appellant was absorbing or eliminating alcohol from his blood when arrested. Therefore, because the blood draw occurred two hours and twenty minutes after Appellant was pulled over, he could not be sure if Appellant’s blood alcohol

concen trat ion was higher or lower at the time of Appellant’s arrest.
I I

. Standard of Review
We review the sufficiency of the evidence under the standard of review in Jackson v. Virginia , 443 U.S. 307 , 318

– 19 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether,
based o n that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson , 443 U.S. at 319 ; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight and credibility of the evidence, and a reviewing court may not reevaluate the weight and credibility of

2 We note that Hambrick testified that he obtained four results related to Appellant’s blood alcohol concentration. Later, however, his testimony indicated that he obtained five figures.4

the evidence so as to substitute its own judgment for that of the factfinder. Dewberry v. State , 4 S.W.3 d 735, 740 (Tex. Crim. App. 1999). The reviewing court must presume that the factfinder resolved any conflicting infere nces in favor
of the verdict and defer to that resolution. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
III

. Analysis Appellant challenges the sufficiency of the evid ence to support his
conviction. Appellant asserts that there was insufficient evidence to prove
intoxication. To support his argument, Appellant asserts that there “was no evidence that [he] had any driving difficulties.” Appellant argues, “ [T] he [arresting] officer admitted that he did not view the Appellant driving erratically.” A person commits the offense of driving while intoxicated with a child passenge r if “the person is intoxicated while operating a motor vehicle in a public place” and if the motor vehicle in question “is occupied by a passenger who is younger than 15 years of age.” P ENAL § 49.045.
The State may prove intoxication in either of two w ays: (1) loss of normal use of mental or physical faculties “ by reason of the introduction of alcohol ” or (2) alcohol concentration in the blood, breath, or urine of 0.08 or more. Id. § 49.01(2); Kirsch v. State , 306 S.W.3d 738, 743 (Tex. Crim. App. 2010)

. “The
first definition is the ‘ impairment ’ theory, while the second is the ‘ per se ’ theory. ”
Kirsch , 306 S.W.3d at 743. These two definitions are not mutually exclusive. Id.
The S tate must prove a “temporal link between the [] defendant’s intoxication and his driving.” Kuciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim. App. 2010)

. But “p roof of the precise time of the accident or of driving is not the sine qua non of driving while intoxicated.” Kennemur v. State , 280 S.W.3d 305, 314 n.8 (Tex. App.

— Am arillo 2008, pet. ref’d) (quot ing Zavala v. State , 89 S.W.3d 134, 139 (Tex. App.

— Corpus Christi 2002, no pet.) (internal quotation marks omitted)

.5

There must be proof from which the jury can conclude that, at the time of the driving in question, the defendant was intoxicated. Zavala , 89 S.W.3d at 139.
T he trial court submitted both theories of intoxication to the jury, and the jury returned a general gu ilty verdict. Appellan t’s conviction will be upheld as long as sufficient evidence was presented at trial to prove either of the alleged
theories. See Bagheri v. State , 119 S.W.3d 755, 761 n.5 (Tex. Crim. App. 2003) (noting that, when the trial court sub mits alternate means by which the State may prove intoxication, the evidence is sufficient to support a general guilty verdict if it is sufficient to prove any of the means alleged). Proof can be from direct or
circumstantial evidence
, and the latter is a s probative as the former ; the standard of
review for both is the same. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Furthermore , a conviction can be supported solely by circumstantial
evidence. Kuciemba , 310 S.W.3d at 462 (citing Guevara , 152 S.W.3d at 49 )

. Hambrick testified that he completed five tests and that all were 0.08 grams of alcohol per 100 milliliters of blood or more. But these tests were taken t wo hours and twenty minutes after Officer Bush stopped Appellant. As stated by the Court of Criminal Appeals, a BAC

- test result is not “by itself” sufficient to prove
intoxication at the time of driving, but “BAC

- test results
, even absent expert retrograde extrapolation testimony
, are often highly probative to prove both per se
and i mpairment intoxication.” Kirsch , 306 S.W.3d at 745. Appellant asserts that
the two

- hour gap between Appellant’s driving and the blood alcoho l concentration testing and also the failure of Officer Bush to note any erratic driving demonstrate d
that the evi dence was insufficient to convict Appellant of the indicted offense of driving while intoxicated with a child passenger. Officer Bush testified that Appell ant smelled strongly of alcohol and had glassy, bloodshot eyes. He found an eighteen

- ounce can of Miller Lite within

ar m’s reach of the driver’s seat, which Officer Bush believed had been recently6

purchased. Appellant refused to take any field sobriety test. Nurse Par rott

Hammerman s melled alcohol on Appellant at the hospital

. Officer Bush testified
that , based on his experience and the tot ality of the circumstances, he believed Appellant was intoxicated. See A nnis v. State , 578 S.W.2d 406, 407 (Tex. Crim. App. [Pane l Op.] 1979) (ho lding that the testimony of the officer that the defendant was intoxicated provided sufficient evidence to establish the element of
i ntoxication for the offense of driving while intoxicated ); Kiffe v. State , 361 S.W.3d 104, 108 (Tex. App.

— Houston [1st Dist .] 2011, pet. ref’d); Henderson v.
State , 29 S.W.3d 616, 622 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref’d). It is undisputed that Appellant had his minor daughter in the vehicle with him at the time of the traffic stop. The jury was the sole arbiter o f the disputed facts
, and the jury believed Officer Bush. After viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact had sufficient evidence to find beyond a reasonable doubt that Appellant was intoxicated while operating a motor
vehicle with a child passenger

. We overrule Appellant’s sole issue on appeal.
I V. This Court’s Ruling
We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE

October 15, 2015 Do not publish. See T EX

. R. A PP . P. 47.2(b).
Panel consists of: W right , C.J., W illson, J

. , and Bailey, J.