Appeal from the County Criminal Court at Law No. 1 Harris
County, Texas Trial Court Cause No. 2014817
consists of Chief Justice Frost and Justices Brown and
Kij Williams challenges his conviction for misdemeanor
driving while intoxicated ("DWI") on the grounds
that the evidence is insufficient to support his conviction
and the trial court reversibly erred by denying his motion to
suppress the horizontal gaze nystagmus ("HGN") test
results. We affirm.
approximately 1:00 a.m. on March 14, 2014, a valet at a
Houston area bar/restaurant heard a noise, turned around, and
saw a vehicle attempting to parallel park. The valet saw the
vehicle hit the car in front and the car behind it; both
these cars were damaged by the driver of the vehicle
attempting to parallel park. Appellant was driving the
vehicle and had a female passenger in the car with him.
Houston Police Department ("HPD") Officer Kevin
Hunt was working off-duty directing traffic flow outside the
restaurant. Hunt approached appellant's vehicle and asked
appellant for his driver's license and insurance.
Appellant refused. According to the State, appellant asked
Hunt, "Can't we just make this go away?" and
offered Hunt $70. Hunt asked the valet to go inside and
request assistance from other off-duty officers present at
waited by appellant's car for the other officers,
appellant and his passenger became belligerent. Hunt
repeatedly asked appellant to turn off the car and get out,
but appellant refused. During Hunt's interactions with
appellant, Hunt saw that appellant's eyes were glassy
with dilated pupils; Hunt also smelled alcohol on
appellant's breath and noticed that appellant's
speech was slurred. Appellant told Hunt that he had had
"a couple of beers." At appellant's trial, Hunt
testified that, based on his observations and experience, he
believed that appellant was intoxicated, most likely by
Lieutenant Mark Glentzer and another officer came outside at
the valet's request. Glentzer saw Hunt speaking with
appellant, who was outside his vehicle and leaning against
it. As Glentzer approached, appellant re-entered his car.
Glentzer noticed that the cars in front of and behind
appellant's vehicle were damaged. Glentzer also smelled
alcohol on appellant's breath, despite the fact that
appellant appeared to be chewing gum during their
interactions. He also asked appellant to step out of the
vehicle, but appellant refused to get out of his car.
Glentzer found appellant to be very slow in his movements and
slow to respond to questions. Glentzer also noticed that
appellant's speech was slurred and appellant did not seem
to understand what the officers were telling him. Glentzer
testified at appellant's trial that, based on his
experience and training, he believed appellant was
intoxicated and had lost the normal use of his mental and
physical faculties on the night in question.
Hunt called the HPD DWI unit; it took approximately twenty to
thirty minutes for the DWI officer to arrive. HPD Officer
Joseph Little, with the department's DWI Task Force,
arrived at the restaurant around 1:30 a.m. Appellant was
still behind the wheel of his vehicle when Little arrived.
Little noticed an odor of alcohol on appellant's breath,
even with appellant's gum-chewing. Little also noticed
that appellant had glassy eyes and slurred speech. Little
asked appellant to step out of the car, but appellant refused
and was uncooperative. Appellant asked repeatedly for a
lawyer, and Little told him that he could not have one during
a DWI investigation. Appellant asked for a blood test, but he
refused to exit his vehicle. Instead, he demanded that the
blood test be performed as he sat in his vehicle.
and his passenger argued with Little for about ten minutes
before the officers decided to forcibly remove appellant from
his vehicle. It took the officers several minutes to remove
appellant from his car, during which time appellant continued
to demand his attorney. Little performed the HGN standard field
sobriety test on appellant, and appellant displayed six out
of six clues of intoxication.
transported appellant to the HPD "intox facility"
to perform other field sobriety tests. When they arrived,
Little demonstrated the walk-and-turn and the one-leg-stand
tests. Appellant refused to perform both tests. However,
appellant consented to a blood-alcohol test. Based on
Little's observations of appellant that night, Little
determined that appellant was intoxicated and had lost the
normal use of his mental and physical
blood was drawn at HPD's "central blood room"
at around 3:30 a.m. The analyst who tested appellant's
blood testified that appellant's blood-alcohol content
was .130 grams of ethanol per 100 mL of blood, above the
legal limit of .08. Appellant was charged by information with
DWI. A jury found appellant guilty, and the trial court
sentenced him to 180 days' confinement, but suspended the
sentence and placed appellant on community supervision for
one year. The trial court certified appellant's right to
appeal, and this appeal timely followed.
first issue, appellant challenges the sufficiency of the
evidence to support his conviction.
of Review. Reviewing courts apply a legal-sufficiency
standard in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); see Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under
this standard, we examine all the evidence adduced at trial
in the light most favorable to the verdict to determine
whether a jury was rationally justified in finding guilt
beyond a reasonable doubt. Temple, 390 S.W.3d at
360; Criff v. State, 438 S.W.3d 134, 136-37 (Tex.
App.- Houston [14th Dist.] 2014, pet. ref'd). Our review
of "all of the evidence" includes evidence that was