Opinion filed September 8 , 2016



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 276

- CR

__________ CASE COOPER NELSON , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 25206 A

O P I N I O N
The jury convicted Case Cooper Nelson of driving while intoxicated at a time
when he had a passenger in the vehicle who was under fifteen years of age

. T EX

. P EN AL C ODE § 49.045 (West 2011 ). T he trial court assessed Appellant ’s punishment

at confinement for six months and a fine in the amount of $1
, 500. The imposition
of the sentence was suspended
, and Appellant was placed on community supervision
for three years

. We affirm

.2

In the first of two issue s on appeal , Appellant argues that the evidence was insufficient to support the jury’s verdict that he was driving while intoxicated at a
time when a child under the age of fifteen was in the vehicle

. Appellant asserts that
, considerin g the totality of the evidence, it was irrational for the jury to find beyond a reasonable doubt that Appellant had “less than normal use” of his mental and physical faculties because of alcohol consumption or that Appellant had an alcohol
concentration of at least 0 .08 while driving. We review the sufficiency of the evidence, whether denominated as a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (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). Evid ence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence
conclu sively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Brown v. State , 381 S.W.3d 565, 573 (Tex. App.

— Eastland 2012, no pet.) (citing Jackson , 443 U.S. at 314, 318 n. 11, 320).
Brian Trail and Jeff Hogue, police officers with the Abilene Police Department, directed traffic after a fireworks show on July 4, 2012
, in Abilene

. When Appellant drove by the location of the fireworks display to see whether the fireworks were still occurring
, he failed to obey Officer Trail’s flashlight signal to3

stop , and he almost hit O fficer Hogue. Once Appellant had stopped his vehicle, Officer Hogue approached Appellant and directed him to m ove out of the lane of
traffic. During his conversation with Appellant, Officer Hogue noticed an odor of
alcohol and observed that A ppellant’s eyes were glassy and that his speech was
slurred. Officer Hogue suspected that Appellant was driving while intoxicated

. Because his primary duty was to direct traffic that night, Of ficer Hogue called
for another unit to conduct the driving

- while

- intoxicated investigation

. Officer Chris Jennings arrived to conduct the DWI investigation. Officer Jennings
testified that he also smelled the odor of alcohol, observed A ppellant’s glassy eyes , and noticed his slurred speech. Appellant admitted to drinking two glasses of whiskey and D iet C oke. Officer Jennings administered field sobriety tests. Appellant showed signs of intoxication on the horiz ontal gaze nystagmus test. Further, Appell ant did not successfully complete the walk

- and

- turn t est or the one

leg stand test. Accordingly
, Appellant was arre sted and taken to jail.
Officer Jennings did, however, agree that A ppellant appeared to have the normal us e of his mental faculties. Appel lant voluntarily submitted to a breath test. Officer Panya Washington
, the intoxilyzer operator for the Abilene Police Department, testified that she properly
administered the breath test. The results showed that A ppellant had an alcohol
concentration of 0 .094 and 0 .092. Tamar a Dill, the technical supervisor for the
i ntoxilyzer program for the Department of Public Safety
, testified that the machines are inspected monthly . On June 11, 2012, Dill inspected the machi ne that was used

to test Appellant ’s breath

. Dill confirmed that the machine was operating properly. Dill also explained that
, f or a breath test to be valid , the operator must take two samples of the test subject’s breath and that the results of the two samples must b e within 0 .02 of each other

. Dill confirmed that the two samples taken from4

A ppellant were within that range

. Upon cross

- examination by defense counsel, Dill agreed that a reading of 0 .072 would be within the 0 .02 tolerance range. Larry Davis was with A ppellant when they were stopped. Davis testified that
he and A ppellant had both bee n drinking. Appellant admitted that his wife, Davis
, and two children were in the vehicle and that he was driving. Appellant stated that they had all gone to the lake earlier in the day but that he was not drinking then

. He
testified that later
, when they were cooking out
, he drank two “ Crown and Cokes ”
around 5:00 or 6:00 p.m. and that Davis and Appellant’s wife were both intoxicated. Appellant denied that he was intoxicated. The statutory definition of intoxicat ion is “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . or (B) having
an alcohol concentration of 0.08 or more.” P EN AL § 49.01(2). Appellant argues on appeal that
, because Officer Jennings acknowledged that Appellant appeared to have the normal use of his mental and physical faculties
, the jury could not have found beyond a reasonable doubt that
, while driving, Appellant had “less th an normal use of his mental and physical fac ulties” from drinking
alcohol. We note, however, that at trial, Officer Jennings only acknowledged that it appeared that Appellant had the norma l use of his mental faculties. Further, Appellant contends that the video from the DWI investigation does not support the officer’s claim that Appellant’s speech was slurred or that Appellant failed the field sobriety tests. Appellant also asserts that
, because a breath test result of 0 .072 would
be within the 0 .02 to lerance range between the two samples, the jury could not have found beyond a reasonable doubt that Appellant had an alcohol concentration of at
least 0 .08. The State stresses that the intoxilyzer was in good working order and that the testimony regardin g the tolerance range is primarily targeted at the tolerance5

between the two samples taken

. Thus, b ecause the readings were both over 0 .08, it was reasonable for the jury to find Appellant guilty by having an alcohol
concentration level of more than 0 .08. Further, the State contends that
, under the
statute, it was not required to prove that Appellant did not have the normal use of both his mental and physical faculties , but only the loss of either. Therefore, because Appellant failed the physical part of the sobriety tests
, it was reasonable for the jury to find Appellant guilty. We agree with the State. Appellant disobeyed traffic signals and almost hit Officer Hogue with his vehicle. Appellant smelled of alcohol, exhibited slurr ed speech, was glassy

- eyed
, and failed fi e ld sobriety tests. Further, the jury heard the testimony of the officers and saw the video . We have likewise viewed the video. I t was reasonable for the jury to agree that Appellant had lost the use of his physical
faculties

. Moreover, t he evidence shows that the intoxilyzer was in good working
order and that Appellant’s breath test results were 0 .092 and 0 .094 , both over the legal limit of 0 .08

. Therefore, after reviewing the evidence in the light most
favorable to the verdi ct, we hold that a rational jury could have found beyond a reasonable doubt that Appellant was driving while intoxicated. Appellant’s first
issue is overruled. In Appellant’ s second issue, he argues that the trial court should have required jury unanimity as to whether Appellant was intoxicated by reason of not having the normal use of his mental or physical faculties or by reason of having an alcohol
concentration of 0.08 or more. When reviewing a jury charge error, we must first determine wheth er there was error in the charge

. Olivas v. State
, 202 S.W.3d 137, 143

– 44 (Tex. Crim. App. 2006); Almanza v. State
, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If there was an error in the charge, the court must then determine whether the error was harmf ul6

to the accused. Olivas
, 202 S.W.3d at 143

– 44; Almanza
, 686 S.W.2d at 171. If the error was not preserved, Appellant must show egregious harm. Almanza , 686
S.W.2d at 171

. In the indictment, the State alleged in the conjunctive that Appellant
, “while intoxicated by having an alcohol concentration of at least 0 .08 and by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, ” operated a motor vehicle with two pass engers under the age of fifteen ( emphasis added)

. The jury charge tracked t he language of the statute. See P ENAL § 49.01. The jury charge read: “[T] he defendant operated a motor vehicle . . . while intoxicated, by either . . . not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body” or by “having an
alcohol concentration of 0. 08 or more.” Appellant did not object to the jury charge. Texas law requires a unanimous jury verdict in felony criminal cases. T EX

. C ONST . art. V, § 13; T EX

. C ODE C RIM

. P ROC

. A NN . art. 36.29(a) (West Supp. 2016);
Stuhler v. State
, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007); Ngo v. State , 175
S.W.3d 738, 745 (Tex. Crim. App. 2005)

. Unanimity in this context means that each and every juror agrees that the defendant commi tted the same, single, specific
criminal act. Ngo , 175 S.W.3d at 745. The defi niti ons for intoxication under
Section 49.01 “set forth alternate means by which the State may prove intoxication,
rather than alternate means of committing the offense.” Bagheri v. State , 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). The conduct prohibited under the statute is the act of driving while in a state of intoxication. Id

. “The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of
commission.” Pizzo v. State , 235 S.W.3d 711, 715 (Tex. Crim. A pp. 2007). Further, “different modes of commission may be presented in a jury instruction in the7

disjunctive when the charging instrument, in a single count, alleged the different means in the conjunctive.” Id

. Because S ection 49.01 sets forth alternate means of proving intoxication, the trial court did not err in its submission of the charge in the disjunctive

. We overrule Appellant’s second issue. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

September 8 , 2016
P ublish. See T EX

. R. A PP

. P . 47.2(b). Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J.