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Fryer v. State

Court of Appeals of Texas, Fourteenth District

May 30, 2019

KENTON FRYER, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 21st District Court Bastrop County, Texas Trial Court Cause No. 16, 029

          Panel consists of Justices Wise, Zimmerer, and Spain.

          OPINION

          Ken Wise Justice

         A jury 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[1] charge. We affirm.[2]

         I. Sufficiency of the Evidence

         In his 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.

         In a 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.

         To 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).

         The 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.").

         In this 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 slurred speech.

         The 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.

         Viewing 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.

         Appellant's second issue is overruled.

         II. Mistrial ...


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