WASIM SOSAK v. STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang

After a bench trial, Wasim Sosak was convicted of driving while intoxicated.   The trial court assessed a punishment of ninety days' confinement in jail, probated for sixteen months and a $500 fine.   In a single issue on appeal, Sosak contends the evidence presented to the trial court is insufficient to support the conviction for driving while intoxicated.   Based on the record and the analysis below, we decide Sosak's sole issue against him.   Because this issue is clearly settled in the law, we issue this memorandum opinion.   See TEX. R. APP. P. 47.2(a), 47.4.   We affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 7, 2007, Sosak was on his way home from a restaurant in the Greenville Avenue area of Dallas.   Dallas police Officer Larry Allen (“Allen”) observed Sosak traveling 50 m.p.h. in a 35 m.p.h zone and stopped him.   At Allen's request, Sosak produced his driver's license and proof of insurance.   Allen testified that at this point, he could smell a “strong odor of alcoholic beverage” on Sosak's breath and that Sosak's eyes were bloodshot.   Allen asked Sosak if he had anything to drink that evening, and Sosak admitted that while at the restaurant, between the hours of 11 p.m. and 12 a.m., he had consumed two glasses of wine.   Sosak agreed to perform three standard field sobriety tests.   When Allen administered the horizontal gaze nystagmus (HGN) test, Sosak scored six of six clues indicating intoxication.   On the walk-and-turn test, Sosak scored two of eight clues.   Sosak scored one of two clues on the one-leg stand test.   However, Sosak declined to provide a breath specimen.   Based on the results of the field sobriety tests and his observations, Allen concluded Sosak did not have the “normal use of his mental and physical faculties” due to the “introduction of alcohol into his body” and arrested him for driving while intoxicated.

On cross-examination, Allen testified to his nineteen years of experience in administering standardized field sobriety tests.   He testified he was recertified yearly by the National Highway Traffic Safety Administration and also acts as an instructor in the administration of field sobriety tests.   Defense counsel questioned Allen on “false positive results” of the HGN test.   Allen admitted there is a possibility of a false positive “if the test is not administered properly and there are environmental conditions that interfere with it.”   Allen testified that environmental conditions which could induce nystagmus, an involuntary eye movement indicating intoxication, could include stimuli, such as “fast moving traffic, [or] a rotating light like on top of the police car.”

On redirect examination, Allen testified that to eliminate the possibility the defendant did not have natural nystagmus or involuntary eye movements, “you look for ․ whether or not they have a resting nystagmus before you begin to test them.”   During a later cross-examination, Allen testified there would be a visible difference between alcohol-related nystagmus and nystagmus caused by environmental conditions.   Allen also affirmed that combining the three tests increases the reliability of the standard field sobriety tests.

Sosak testified on his own behalf stating he was not intoxicated that night, and he believed he had normal use of his mental and physical faculties when he was driving.   Sosak also testified his eyes were not bloodshot, but he was “pretty sure that [his] eyes would get a little bit red with contacts on all day” Sosak stated he refused the blood or breath test because, “I honestly didn't think that I was going to get arrested that night, and I just felt there was no justice served to me and it didn't matter if I was going to take the test or not.”

After the close of the evidence, the judge found Sosak guilty and assessed punishment at ninety days' confinement in jail, probated for sixteen months and a $500 fine.

II. SUFFICIENCY OF THE EVIDENCE

In his only issue, Sosak argues that the State's evidence is insufficient and his conviction must be reversed.   Specifically, appellant contends, “The State's evidence lacks sufficient strength, character, and credibility to engender certainty beyond a reasonable doubt that Appellant was driving while intoxicated” Thus, Sosak argues, this court should reverse the trial court's judgment and render judgment of acquittal.

A. Standard of Review

Sufficiency of evidence is evaluated under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318 (1979), recently rearticulated in Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010), and adopted by this court in Bell v. State, 326 S.W.3d 716, 720 (Tex.App.—Dallas 2010, pet. dism'd).   In a review of the sufficiency of evidence to support a criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”   Jackson, 443 U.S. at 319.   The Jackson v. Virginia legal-sufficiency standard was adopted as “the only standard that a reviewing court should 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.”  Brooks, 323 S.W.3d at 894.   This standard “requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt.”  Bell, 326 S.W.3d at 720.   In determining the sufficiency of evidence to support a criminal conviction, “the trier of fact is the sole judge of the witnesses' credibility and is free to accept or reject any or all of the evidence presented by either side.”  Lincoln v. State, 307 S.W.3d 921, 924 (Tex.App.—Dallas 2010, no pet.).

B. Applicable Law

“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”  Tex. Penal Code Ann. § 49.04(a) (West 2011).   The term “intoxicated” is defined as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol ․ into the body.”   Id. § 49.01(2)(A).   Various factors are taken into account to determine whether a defendant was intoxicated, including the presence of bloodshot eyes, the odor of alcohol, the results of field sobriety tests, and the opinion and credibility of the arresting officer.   See Annis v. State, 578 S.W.2d 406, 408 (Tex.Crim.App.1979);  Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.—Dallas 1987, pet. ref'd).   Even in light of contradicting testimony, “[t]he officer's testimony, standing alone, can be sufficient to prove the elements of intoxication.”  Watkins, 741 S.W.2d at 549.

C. Application of Law to Facts

Sosak challenges the sufficiency of evidence to support the trial court's judgment that he was guilty of the offense of driving while intoxicated.   To establish the intoxication element of the offense, the State must prove that Sosak lacked “normal use of mental or physical faculties by reason of the introduction of alcohol ․ into the body.”  Tex. Penal Code Ann. § 49.01(2).   Allen testified about his observations of Sosak's bloodshot eyes, the odor of alcohol on Sosak's breath, and Sosak's performance on the field sobriety tests.   On the HGN test, Sosak scored six of six clues indicating intoxication.   On the walk-and-turn test, Sosak scored two of eight clues.   On the one-leg-stand test, Sosak had one clue out of two.   Allen testified that based on his observations and the results of the sobriety tests, it was his opinion that Sosak did not have normal use of his physical or mental faculties because of the introduction of alcohol into his body, i.e., he was intoxicated.

Sosak argues that the trial court's reliance on Allen's testimony regarding Sosak's intoxication was “not rational.”   Sosak testified he was not intoxicated that evening and that he had normal use of his mental or physical faculties.   Also, Sosak points to the fact that he testified his bloodshot eyes were due to his wearing his contacts all day.

The trial court was free to accept or reject any or all testimony or evidence presented by either side.   See Lincoln, 307 S.W.3d at 924.   No other evidence supporting a finding of intoxication other than the officer's testimony was necessary.   See Watkins, 741 S.W.2d at 549.   Viewing all of the evidence under the appropriate standard, we conclude the trial court was rationally justified in finding that Sosak was guilty of driving while intoxicated beyond a reasonable doubt.   See Bell, 326 S.W.3d at 720.

III. CONCLUSION

We decide appellant's sole issue against him.   The trial court's judgment is affirmed.

DOUGLAS S. LANG JUSTICE