COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

AL EJ ANDRO GA RCI A, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00322- CR

Appea l from 384th District Court of El Paso County , Texas (TC # 20080D03392)

O P I N I O N Alejandr o Gar cia a

ppeals his conviction of f elony driving while intox icated. A jury found Appellant g uilty

and asse ssed his punishment at imprisonment for ten y ear s. We affirm.

F ACTUAL SUMMA RY Shortly afte r midnight on J une 8, 2 0 0 8 , E l Paso Police Offic er J ose Medina observe d a vehicle driven by Ap pellant coming throug h an alley with the headlig hts off. Medina beca me suspicious and decide d to follow the vehicle as it pulled out onto the street. Appellant initially drove the vehicle over the cente r line which place d him in the lane with oncoming traff ic. As he continued down the street, Appellant’s vehicle straddled the lanes and swerve d betwee n the rig ht and left lanes three times without any signa l. Medina suspected Appellant was intox icated but he pulled along side the vehicle to deter

mine if Appellant wer e distracted by “fiddling aro u n d ” wi th a cell phone. Appellant was not on the ph o n e an d Medina noticed he was also driving without a seat belt. Consequently , M edina decide d to conduct a traff ic stop. When Medina approa ched the driver’ s door, he saw that the window was missing and there was broken g lass on Appellant’s lap, the seat, and the floor of the vehicle. Appellant denied that he had been drinking but Medina could smell anodor of al co h ol on Appellant’s brea th and he also had bloodshot ey es and slurred speec h. I n

Medina’s opinion, Appellant was intox icated as he did not have the normal use of his phy sical and mental fac ulties. Medina based his opinion on his training and experience in conducting other DWI investiga tions and on his observa tion of Appellant for approximately thirty minutes

. Beca use he believed Appellant was intox icated and should not be opera ting a vehicle, Medina called for a DWI unit. Medina did not continue to investiga te the case persona lly beca use he was on “dire cted patrol” which require d him to be immediately available to a ssist other office rs who wer e working in pla in clothes. Medina le ft afte r spea king w ith Office r Jesus P ay an about his stop of Appe llant. The State introduced a videotape made by Pay an at the scene . The videotape did not rec ord sound due to a defe ct but Pay an narr ated the video while the jury watched

. L ike Medina, Pay an noticed that Appellant had bloodshot ey es. At the beg inning of his part of the investiga tion, Pay an advised Appellant of his Miranda rig hts and Appellant waived his rig hts. Pay an perf ormed the horizontal g aze ny stag mus test and observe d that Appellant exhibi ted jerkiness of his ey es consistent with intox ication. Pay an next had Appellant perf orm the walk-a

nd-turn field so b r ie ty te s t. Appellant exhibi ted three of eig ht possible clues present when a person is intox icated. Pay an also had Appellant perform the one leg sta n d test. Appellant did not perf orm the t est succe ssfully and had

to raise his arms and place his foot on the ground when he los t his balanc e. He did not tell Pay an about any medical conditions which would have preve nted him from being able to perf orm the test. Ba sed on his observa tions and Appellant’s perf ormanc e of the field sobriety tests, Pay an conclude d Appellant was intox icated. Pay an advised Appellant he was under arr est for driving wh i l e intox icated and rea d his Miranda rig hts to him. Although Appellant had been calm during the initial part of the i nvestig ation, he bec ame be lliger ent and ve rbally abusive whe n Pay an tol d him he was under a rre st. Pay an also re ad the statutory war ning to Appellant and reque sted that he submit to abrea th test, but Appellant ref used. During cross-e x amination, Pay an testified that Appellant did not appea r to be sway

ing at the beg inning of the vi deo or during the one-le g stand test. Pay an reiterate d, howeve r, t hat Appellant had been unable to perf

orm the one-le g stand test without losin g h i s b alance and had put his foot down multipl e times in order to maintain his balanc e. The indictment alleg ed that Appellant lacke d the normal use of his mental and phy sical fac ulties by rea son of introduction of alcohol into his body

. The jury found Appe llant guilty

of driving while intox icated a s alleg ed in the indictment.
F ACTUAL SUF F ICIENCY I n his sole poi n t o f error, Appellant challeng es the fac tual sufficie ncy of the evidenc e supporting his conviction. I n revie wing fac tual sufficie ncy of the evidenc e to support a conviction,

we are to view all the evidenc e in a neutra l light, favor ing neither party

. Berry v. State , 233 S.W .3d 847, 854 (Tex.Crim.App. 2007); Johnson v. State , 23 S.W .3d 1, 7 (T ex . Crim.App. 2000). I n perf orming our revie w, we are to g i v e d u e defe renc e to the fac t finder’ s deter minations. See Johnson , 23 S.W .3d at 8-9. There are two way s in which the evidenc e may be fac tually insufficient. The first is that the evidenc e supporting the verdic t, t h o u gh l ega lly sufficie nt, is so wea k as to be clea rly wrong and manifestly unjust. Berry , 233 S.W .3d at 854; Lancon v. State , 253 S.W .3d 699, 705 (Tex.Crim.App. 2008); Go o d man v. State , 66 S.W .3d 283, 285 (Tex.Crim.App. 2001). A clea rly wrong and unjust verdic t occur s wher e the jury ’s finding is m an i fe s t l y u n just, shocks the conscie nce, or clea

rly demonstrates bias. Berry , 233 S.W .3d at 854; Sells v. State , 121 S.W .3d 748, 754 (Tex.Crim.App. 2003). The sec ond is that, when considering conflicting evidenc e, the jury ’s verdic t is ag ainst the g rea

t weig ht and preponde ranc e of the evidenc e. Lancon , 253 S.W .3d at 705. Thus, the question we must consider in conducting a fac tual sufficie ncy revie w is whether a neutra l revie w of all the evidence, both for and ag ainst the findi ng , demonstrates that the proof of guilt isso obviously wea k as to undermine confide nce in t h e fac t finder’ s deter mination, or the proof of
g uilt, althoug h adequa

te i f t aken alone, is g rea tly outweig hed b y co n t ra ry proof. See Johnson , 23 S.W .3d at 11. Under the first part of this standard, we cannot conclude that a conviction is “cle arly wrong ”

or “manife stly unjust” simply beca use, on the quantum of evidenc e admitted, we would have voted

to acquit had we been on the j u ry . W a t s o n v. State , 204 S.W .3d 404, 417 (Tex.Crim.App. 2006). Under the second part, we cannot decla re that a conflict in the evidenc e justifies a new trial simply beca use we disag ree with the jury ’s resolution of that conflict. Id. Be fore finding that the evidenc e is factua lly

insufficient to support a verdic t unde r the second part of the standard, we must be able

t o s ay , wi t h some objective basis in the rec ord, that the g rea t weig ht and preponde ranc e of th e evidenc e contr adicts the jury ’s ver dict. Id. The State was require d to prove that Appellant opera ted a motor v eh i cl e in a public place while intox icated and he had two prior DWI convictions. T E X .P E N .C O D E AN N
. §§ 49.04(a) & 49.09(b)( 2)(Ve rnon 2003 & Ver non Supp. 2 0 0 9). Appellant restric ts his fac tually sufficie ncy challeng e to the intox ication element. For purposes of this case , “intox icated” means not having the normal use of mental or phy sical fac ulties by rea son of the introduction of alcohol into the body

. See T E X .P E N .C O D E AN N
. §49.01(2)( A)(V ernon 2003)

. Appellant first contends that the evidenc e supporting his conviction is so wea k that the jury ’s conclusion is clea

rly wrong and manifestly unjust. His arg ument focuse s exclusively on the video, but we must consider all of the evidenc e in our revie w. Offic er Medina testified Appellant opera ted his ve hicle without headlig hts and drove on the wrong side of the stre et. He also drove err atically by swerving from one lane to another

. Medina also observe d that Appellant exhibi ted signs that he had been drinki ng , including the odor of an alcoholic bever ag e on his brea th and bloo d shot ey es.Appellant also had slurred speec h. Fu rt h er , Medina offe red his opinion that Appellant was

intox icated beca

use he did not have the normal use of his mental and phy sical faculties. Offic er Pay an observe d that Appellant exhibi ted signs of intox icat i o n d u ri ng the HGN test and the field sobriety tests. The videotape supports Pay an’s testimony reg arding Appellant’s loss of balanc e and other s i gn s of intox ication shown by the field sobriety tests. Pay an ag ree d with Medina that App e ll a n t w a s in tox icated. Additionally , the jury could infer g uilt from Appellant’s ref usal to submit

a brea th sample. See T E X .T R A N S P .C O D E AN N
. §724.061 (Ve rnon 1999)(a uthorizi ng admission of evidenc e that a person ref used a reque st by an office r to submit to the taki n g o f a brea th or blood sample); Gaddis v. State , 753 S.W .2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer g uilt from

a defe ndant’s ref

usal to take a brea th te st); Burkett v. State , 179 S.W .3d 18, 26-27 (Tex.App.--San Antonio 2005, no pet.)(de fenda nt’s ref usal to take the intox ily

zer test implies he believed he would fail it beca

use he thought he was intox icated, and from such ref usal, the jury may infer g uilt). Fr om all of this evidenc e, the jury could have conclude d t h at Ap p el l ant had lost the normal use of his mental and phy sical fac ulties due to the introduction of alcohol into his body

. The jury ’s verdic t is

not manifestly unjust as i t does not shock t he conscience or i ndicate bias. We there fore co n cl u d e it is fac tually sufficie nt. See Burkett , 179 S.W .3d at 26-27 (evide nce was fac tually sufficie nt to find that defe ndant was intox icated, as require d to support DWI wher e three police o ff i cer s smelled a strong odor of alcohol on def endant’ s brea th, defe ndant exhibit ed six clues on the hor izont al g aze ny stag mus (HGN ) test, defe ndant verifie d that he had not suffe red any head injuries that could have aff ecte d the reliability of the HGN test and that none of his phy sical impairments would have aff ecte d its acc urac y , defe ndant was unable to follow simple instructions, and defe ndant ref used to provide the police a specimen of his brea th or a sample of his blood to deter mine his blood alcohol content).Appellant additionally arg ues that the videotape contra dicts th e two office rs’ testimony

beca use it ref lects Appellant did not sway , stumble, or misstep. We keep in m i n d that it was the jury ’s task to revie w t h e video and draw its own conclusions about what it depicted. Fur ther, we
must g ive appropr iate defe renc e to the infere nces draw n by the jury and ar e not permitted to substitut e our view of the evidenc e. As Appellant notes, there are portions of the video in which it

can be seen that Appellant is not sway ing, but the video also shows that Appellant lost his balanc e during the one-le g stand test and the walk-a nd-turn test. Thus, the videotape works both in favor of Appellant and a g ainst him. As alrea dy detailed, the State introduced evidenc e showing Appellant drove while intox icated. We are unable to conclude that the g rea t weig ht of the evidenc e contra dicts the jury ’s verdic t. See Burkett , 179 S.W .3d at 26-27 (evide nce fac tually sufficie nt despite testimony from defe ndant’s medical doctor reg arding illnesses which sometimes cause d defe ndant to have the
appea ranc e of being intox icated when he was not; defe ndant’s illness did not explain why he had the odor of an alcoholic bever ag e on his br eath nor would it cause him to e x hibit sig ns of intox ication during HGN test). We overr ule Appellant’s sole point of err or and aff irm the judgme nt of the trial

court.

J uly 30, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)