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 385th 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, 

 

1See TEX. PENAL CODE ANN. § 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 

Police Department, initiated a traffic stop of Appellant because defective 

equipment on Appellant’s vehicle prevented Officer Bush from reading the 

vehicle’s license plate number. Appellant did not immediately stop his vehicle,

despite several opportunities to do so. Eventually, Appellant stopped his vehicle,

and Officer Bush stopped his patrol car as well.

Officer Bush then approached Appellant’s vehicle. Appellant’s daughter, 

who was eight 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 from the driver.” Officer Bush later claimed the odor of alcohol was 

strong. He “noted that, from [his] position contacting [Appellant], there was an 

alcoholic-beverage can in the front compartment of the vehicle.” Officer Bush 

also “noticed the bloodshot, glassy eyes.” The alcoholic beverage, an eighteenounce 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 

recently purchased.”

When Officer Bush asked, Appellant denied that he had been drinking and 

refused to do any field sobriety tests. Officer Bush asked 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 Appellant did 

not speed, drive erratically, change lanes improperly, or slur his speech. But 

Officer Bush concluded, based on the totality of the circumstances, that 

“[Appellant] was intoxicated while operating a vehicle,” and he arrested Appellant. 

Officer Bush then took Appellant to Midland Memorial Hospital for a blood draw. 
3

Keitha Parrott-Hammerman, a nurse, drew a sample 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 alcohol at the hospital.

Dennis Hambrick, a chemist with the Texas 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 tests2indicated 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 

concentration was higher or lower at the time of Appellant’s arrest.

II. 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 on 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 

 

2We 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.3d 735, 740 (Tex. Crim. App. 1999). The reviewing 

court must presume that the factfinder resolved any conflicting inferences 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 evidence 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 passenger 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.” PENAL § 49.045. 

The State may prove intoxication in either of two ways: (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 State 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 “proof 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.—Amarillo 2008, pet. ref’d) (quoting 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. 

The trial court submitted both theories of intoxication to the jury, and the 

jury returned a general guilty verdict. Appellant’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 submits 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 as 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 two 

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 impairment intoxication.” Kirsch, 306 S.W.3d at 745. Appellant asserts that 

the two-hour gap between Appellant’s driving and the blood alcohol concentration 

testing and also the failure of Officer Bush to note any erratic driving demonstrated

that the evidence was insufficient to convict Appellant of the indicted offense of 

driving while intoxicated with a child passenger.

Officer Bush testified that Appellant smelled strongly of alcohol and had 

glassy, bloodshot eyes. He found an eighteen-ounce can of Miller Lite within 

arm’s reach of the driver’s seat, which Officer Bush believed had been recently 
6

purchased. Appellant refused to take any field sobriety test. Nurse ParrottHammerman smelled alcohol on Appellant at the hospital. Officer Bush testified

that, based on his experience and the totality of the circumstances, he believed 

Appellant was intoxicated. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. 

App. [Panel Op.] 1979) (holding that the testimony of the officer that the defendant 

was intoxicated provided sufficient evidence to establish the element of 

intoxication 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 of 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.

IV. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE 

October 15, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.