Appeal from the 21st District Court Bastrop County, Texas
Trial Court Cause No. 16, 029
consists of Justices Wise, Zimmerer, and Spain.
convicted appellant of assaulting a public servant and
driving while intoxicated with a child passenger (DWI). The
trial court sentenced appellant to concurrent sentences of
confinement for eight years and two years, respectively.
Appellant challenges the sufficiency of the evidence to prove
his guilt for the DWI conviction, and he contends that the
trial court erred by denying his request for a mistrial and
by submitting a coercive Allen charge. We
Sufficiency of the Evidence
second issue, appellant contends that the evidence is
insufficient to prove that he was intoxicated because the
State presented no evidence concerning appellant's blood
test results or field sobriety tests.
sufficiency review, we consider all the evidence in the light
most favorable to the jury's verdict to determine
whether, based on that evidence and reasonable inferences
therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas
v. State, 517 S.W.3d 756, 765-66 (Tex. Crim. App. 2016).
We defer to the jury's responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Id. at 766.
prove the offense of DWI, the State had to prove among other
things that appellant was intoxicated. See Tex.
Penal Code § 49.045(a)(1). A person is intoxicated if
the person does not have "the normal use of mental or
physical faculties by reason of the introduction of
alcohol" or any other substance into the body.
Id. § 49.01(2)(A).
State may prove intoxication by lay opinion testimony.
See Emerson v. State, 880 S.W.2d 759, 763 (Tex.
Crim. App. 1994); Ritchie v. State, 296 S.W.2d 551,
553 (Tex. Crim. App. 1956). Evidence of blood alcohol
concentration or field sobriety tests is not necessary to
sustain a conviction for DWI. See Annis v. State,
578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (sufficient
evidence of intoxication regardless of chemical breath test,
based on the arresting officer's testimony that the
appellant's vehicle swerved across a lane-dividing line
several times, and that the appellant appeared disorderly,
his speech was "mush-mouthed," he swayed from side
to side when walking or standing, his eyes were red, and his
breath smelled of alcohol); Fontenot v. State, 486
S.W.2d 941, 941-42 (Tex. Crim. App. 1972) (sufficient
evidence of intoxication based on the arresting officers'
testimony that the appellant was intoxicated and that the
appellant was unable to carry on a coherent conversation, was
"thick-tongued," was unsure of his balance, and had
a strong odor of alcohol about him); Vaughn v.
State, 493 S.W.2d 524, 526 (Tex. Crim. App. 1972)
(sufficient evidence of intoxication based on the arresting
officer's testimony that the appellant's car was
weaving down the road, appellant was speeding, his eyes were
bloodshot, and he told the officer that he had drank about
six beers); see also Sanchez v. State, No.
14-07-01049-CR, 2008 WL 4647400, at *2 (Tex. App.-Houston
[14th Dist.] Oct. 21, 2008, no pet.) (mem. op., not
designated for publication) ("The opinion testimony of
the arresting officer alone is legally sufficient to support
a finding of intoxication.").
case, a husband and wife testified that they saw a woman and
young child "pushed" or "forced" out of
appellant's car on a cold, dark night. The husband and
wife went to assist and learned that appellant and the woman
had just come from a wedding where appellant had been
drinking. The husband testified that he learned appellant had
continued drinking in the car, and there was an open
"bottle of Crown" in the console of the car. The
wife believed that appellant was intoxicated based on the way
he was behaving and driving recklessly-in and out of ditches
and stopping abruptly. The husband believed appellant had
been drinking because of appellant's erratic and
dangerous driving, there was a smell of alcohol emanating
from the car, appellant was yelling obscenities, and "a
lot of what he was saying was incoherent" because of his
first deputy who arrived on the scene testified that the
deputy smelled alcohol emanating from appellant. Appellant
assaulted this deputy and attempted to take the deputy's
gun. Another deputy who arrived after the assault and
assisted with arresting appellant testified that there was a
strong odor of alcohol coming from appellant's breath.
The deputy described additional characteristics of
appellant's intoxication, based on the deputy's
training and experience: appellant did not follow commands,
he had slow and methodical speech, he was unable to get up
off the ground, he fell on his back several times, he
exhibited an inability to stand, and his eyes were bloodshot
and glassy. Several deputies assisted to load appellant into
a patrol car. On a video admitted as an exhibit, someone
described appellant as falling asleep.
this evidence in the light most favorable to the jury's
verdict, a rational juror could have found that appellant did
not have the normal use of mental or physical capacities by
reason of the introduction of alcohol into his body, i.e.,
appellant was intoxicated. See Annis, 578 S.W.2d at
407; Fontenot, 486 S.W.2d at 941-42;
Vaughn, 493 S.W.2d at 526.
second issue is overruled.