JON MARK BROUSSARD v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice O'Neill

A jury convicted Jon Mark Broussard of driving while intoxicated (DWI).   Pursuant to an

agreement between the State and appellant during the punishment phase, the trial court assessed punishment at 120 days' confinement in the county jail, probated for one year, and a $800 fine.   In two issues, appellant contends the evidence is legally and factually insufficient to sustain the conviction.   We affirm.

Background

The jury heard testimony from two Plano police officers, Joey Guerra and Shelby Kervein.   Guerra testified he was dispatched to a Walmart store at 2:11 a.m. on April 19, 2009 due to a wrecked vehicle sitting in the grass median in the parking lot.   When he arrived, Guerra saw a tow truck sitting next to a black BMW that was in the grass median.   The BMW had some damage on the front, but it did not appear to have struck a nearby light pole.   There was no one in or around the vehicle when Guerra arrived on the scene.   Guerra saw a truck drive into the lot and park next to another vehicle near the front of the store.   The driver exited the truck and went into the store.   Guerra said appellant was the driver of the truck.   Even though there were two officers and a tow truck by his wrecked vehicle at the other end of the lot, appellant drove pass them and went inside the store.   Guerra interviewed a woman in the vehicle next to appellant's truck.   She said the driver was wearing shorts and was carrying a Gatorade bottle.

When Guerra made contact with appellant in the store's restroom, appellant said he owned the wrecked BMW, and that the BMW ended up on the grass median because the brakes malfunctioned.   After jumping the curb, appellant called for a tow truck.   He waited almost ninety minutes before he decided to walk home, which was about two miles from the store.   Appellant walked home, got into his truck, and drove back to the store's parking lot to meet the tow truck driver.   When he pulled into the parking lot, he had to use the restroom, so he parked the truck and went inside the store.   Appellant said he had been to a bar called “The Loft 610” and had consumed three beers between 10:30 p.m. and 12:30 a.m. Guerra testified he noticed appellant's eyes were bloodshot and watery, and appellant had a strong odor of an alcoholic beverage on his person.   Guerra testified he assumed appellant had changed his clothing when he went home because he was wearing shorts and “flip-flops,” but The Loft was an upscale establishment that would not allow a person to dress in that fashion.

Guerra, who is certified to give standardized field sobriety tests, administered the tests to appellant, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and one-leg stand tests.   Appellant exhibited six out of six clues on the HGN and five out of eight clues on the walk-and-turn, but he exhibited no clues on the one-leg stand.   Guerra believed appellant had lost the normal use of his mental and physical faculties due to alcohol consumption.   He arrested appellant and transported him to the intoxilyzer room at the city jail, where appellant refused to give a breath sample.   Appellant said he would give a blood sample, but Guerra refused, telling appellant that offering to give a blood sample was “irrelevant” because he had already refused to give a breath sample.   Guerra explained to the jury that sometimes an arrested person will offer to give a blood sample, knowing they will need to be transported to a local hospital, and then will refuse to give the blood sample when they get to the hospital.   A DVD recording of appellant performing field sobriety tests at the scene and appellant refusing a breath test at the jail was admitted into evidence.

Officer Kervein, who is also certified to administer field sobriety tests, arrived on the scene as a backup officer.   When he arrived, he saw a black BMW that had flat tires, scrape marks on the side, and was sitting in a grass median.   A tow truck was next to the BMW. Kervein testified he operated the patrol car's camera while Guerra administered field sobriety tests to appellant.   Guerra administered all of the tests correctly.

The jury also heard testimony from Dr. Lance Platt, who testified as an expert on field sobriety tests.   Platt is a certified law enforcement officer who works as a consultant on alcohol and drug offense cases and also trains officers in the administration of field sobriety tests.   Platt testified on appellant's behalf that he did not believe appellant was intoxicated at the time he performed the field sobriety tests.   Platt said that as a part of his consulting duties, he routinely reviews any videotapes and police reports in a case, then gives his impressions of the overall DWI detention process.   In this case, Platt reviewed the video recording of appellant performing the field sobriety tests at the scene and of appellant in the intoxilyzer room at the jail.   Platt believed Guerra did not administer the HGN test properly, stating he saw appellant exhibit only four clues on the HGN test and three clues on the walk-and-turn test.   During cross-examination, Platt testified an officer determines whether a person is intoxicated based upon several factors and not just the field sobriety tests alone.

Applicable Law

The Texas Court of Criminal Appeals held that the Jackson v. Virginia standard is the only standard a reviewing court is to apply 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.   See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   Therefore, we will address appellant's issues under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 323 S.W.3d at 895.   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place.   See Tex. Penal Code Ann. § 49.04(a) (West 2003).  “Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances or any other substance into the body.   See id. § 49.01(2).

Discussion

Appellant contends the evidence is insufficient because there was no “quality proof” that he was intoxicated.   Appellant asserts that even though one of the field sobriety tests was administered incorrectly by the officer, appellant performed all the tests adequately.   The State responds that a reasonable jury could have found that appellant was guilty of DWI.

Appellant does not dispute the fact that he was operating a motor vehicle in a public place.   He challenges the sufficiency of the evidence to prove he was intoxicated at the time he drove a vehicle.   The jury heard Guerra's testimony that appellant had bloodshot, watery eyes, smelled of an alcoholic beverage, admitted he consumed three beers, and did not perform the field sobriety tests satisfactorily.   Officer Kervein, who is certified to administer field sobriety tests, told the jury that he observed Guerra administer the field sobriety tests to appellant and that Guerra administered them properly.   On the other hand, Platt told the jury that based upon the videotape he reviewed of appellant at the scene, Officer Guerra did not administer the HGN properly and that he did not believe appellant was intoxicated at that time.   It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side.   See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979);  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000).

Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant operated a motor vehicle in a public place while intoxicated.   Thus, the evidence is sufficient to sustain the jury's verdict and appellant's conviction.   See Brooks, 323 S.W.3d at 895.   We resolve appellant's two issues against him.

We affirm the trial court's judgment.

MICHAEL J. O'NEILL JUSTICE