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Court of Appeals of Texas, Dallas.


No. 05-10-00320-CR

Decided: February 23, 2011

Before Justices Moseley, Richter, and Lang-Miers


Opinion By Justice Moseley

According to appellant, Victor Eric Vincent, he was driving eastbound on Highway 380 at the posted speed limit of sixty miles per hour when he overtook a slower-moving vehicle, also traveling eastbound.   He changed lanes to pass but, during the course of that maneuver, he looked in his rear-view mirror and saw the headlights of a fast-moving vehicle rapidly approaching him from behind.   The gap between the two vehicles was closing so quickly that appellant feared the other driver did not see him, or was even intoxicated.   To protect himself and his passenger, appellant accelerated to a speed above the limit and completed his passing maneuver.   At that point, the “fast-approaching” vehicle activated its police lights and pulled appellant over for speeding.

After conversing with appellant and conducting field sobriety tests, the officer arrested appellant for driving while intoxicated.   Appellant was transported to the Collin County jail, where breath test results indicated he had a blood alcohol concentration of .128 and .123 grams of alcohol per 100 milliliters of blood.

Appellant was charged by information with the misdemeanor offense of driving while intoxicated.   He waived a jury trial and pleaded not guilty.   At trial appellant agreed to the admission of a roadside video, the intoxilyzer room video, and the breath test results.   Following testimony by the arresting officer and appellant, the trial court found appellant guilty of the charged offense and sentenced him to ninety days' confinement in the county jail, probated under community supervision for one year, and an $800 fine.   Appellant timely filed this appeal.

In his first and second issues, appellant contends the evidence is legally and factually insufficient “to support that [the arresting officer] had the reasonable suspicion to initiate a traffic stop.”   However, the “sufficiency” of the evidence relates to “whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible.”  Caddell v. State, 123 S.W.3d 722, 726 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).   Accordingly, legal and factual sufficiency issues must relate to the elements of the offense.  Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)).

Whether the officer had reasonable suspicion to stop appellant is not an element of the offense of driving while intoxicated.   See Tex. Penal Code Ann. § 49.04 (West 2003).   Accordingly, appellant's first and second issues present nothing for review.

In his third issue, appellant argues the trial court abused its discretion by failing to find as a matter of law that appellant's commission of a traffic offense-specifically, speeding-was justified as a necessity.   Necessity is a defense to prosecution.   See id. § 9.02 (West 2003) (“It is a defense to prosecution that the conduct in question is justified under this chapter.”).   However, here appellant was charged with driving while intoxicated, not speeding.   We need not cite case law to state that speeding, even for the most justifiable of reasons, does not justify driving while intoxicated.   Thus, whether appellant was justified in exceeding the posted speed limit is irrelevant to his prosecution for driving while intoxicated.   We resolve appellant's third issue against him.

Based on our resolution of appellant's three issues, we affirm the trial court's judgment.


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