Reset A A Font size: Print

Court of Appeals of Texas, El Paso.


No. 08-15-00026-CR

Decided: January 17, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., Not Participating


Appellant Ricky Heffel asks this Court to overturn his conviction for driving while intoxicated, contending that the State failed to meet its burden of proof and that certain evidence was improperly admitted.

We affirm Heffel's conviction.1


During a 2 a.m. early morning patrol, Lake Dallas Police Department Officer Blake Moore observed a truck traveling 65 miles an hour in a 45-mile-an-hour zone. While following the truck, but before Officer Moore turned on his lights, Officer Moore saw the truck run a red light and accelerate onto a street with a 35-mile-per-hour speed limit. Officer Moore then pulled the truck over. Officer Moore positively identified the driver as Heffel at trial. Officer Moore testified that he smelled alcohol coming from Heffel's car, and Heffel had slurred speech and glassy eyes. Officer Moore noticed that Heffel had “a rather large bump on his head.” When Officer Moore asked Heffel about the bump, Heffel “was shocked that it was even there. [He] [d]idn't even know he had the lump on his head.” Officer Moore asked Heffel where he was going multiple times. Heffel “kept repeating himself over and over” and mentioned the fact that he was having hip surgery the next day. Heffel stated that he was coming from North Richland Hills and was heading toward his parent's house.

Heffel initially denied consuming alcohol, but eventually admitted to drinking one beer. Heffel also told Officer Moore that earlier that evening he had taken hydrocodone, a prescription painkiller. Officer Moore performed a horizontal gaze nystagmus (HGN) test on Heffel. During the test, Heffel exhibited six out of six signs of intoxication. Heffel refused to provide a breath or blood sample.2 Officer Moore did not have Heffel perform the one-leg stand or walk-and-turn tests because Heffel stated that he had hip problems. Officer Moore arrested Heffel. Incident to the arrest, a search of the car revealed six beer cans—two were full, one had a coozie on it and was half empty, one had a small amount left inside, and two were opened behind the seat.


Heffel advances four issues on appeal. None of the issues constitute a basis for reversal.

Legal Sufficiency

In Issue One, Heffel maintains that the evidence underpinning his conviction was legally insufficient, as the State failed to prove beyond a reasonable doubt that he was intoxicated and not, in fact, suffering the effects of a head injury. We disagree.

On legal sufficiency review, we assess all trial evidence “in the light most favorable to the prosecution,” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We review all record evidence—direct or circumstantial, properly admitted or not—in making this determination. Clayton, 235 S.W.3d at 778. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).

DWI has five elements: (1) the defendant; (2) operated; (3) a motor vehicle; (4) while intoxicated; and (5) on or about the date alleged in the State's charging instrument. Paschall v. State, 285 S.W.3d 166, 174 (Tex.App.--Fort Worth 2009, pet. ref'd); TEX.PENAL CODE ANN. § 49.04 (West Supp. 2017). Per the Texas Penal Code, “intoxicated” means:

(A) 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, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

TEX.PENAL CODE ANN. § 49.01(2)(West 2011).

The State may prove intoxication by either direct or circumstantial evidence. Paschall, 285 S.W.3d at 177. The State concedes that, because Heffel refused to provide breath or blood samples, it cannot prove Heffel had a BAC of 0.08 or more. As such, it proceeded under a not having normal use of mental or physical faculties theory.

Heffel insists that, despite witness testimony that he had the smell of alcohol on his breath, showed nystagmus in his eyes, and had slurred speech, his DWI conviction cannot stand because the smell of alcohol alone does not show intoxication, nystagmus is equally consistent with a head injury, and no witness testified that Heffel drove erratically before being pulled over. In the first place, contrary to Heffel's assertion in his brief, no witness ever testified that nystagmus can be caused by a head injury. In the second place, no witness needed to testify that Heffel drove erratically for his conviction to be upheld. The crime of DWI is committed once an intoxicated person operates a motor vehicle—i.e., once a person “exerted personal effort to cause the vehicle to function.” See Crawford v. State, 496 S.W.3d 334, 340 (Tex.App.--Fort Worth 2016, pet. ref'd)(DWI conviction was legally sufficient where defendant was found asleep in running pickup truck with engine running and gear shift in park). And in the third place, Heffel's divide-and-conquer approach to legal sufficiency is not consistent with the framework we must use to assess legal sufficiency. Instead, we view all record evidence in the light most favorable to the prosecution and decide whether, based on the cumulative force of the evidence, a conviction can be sustained. Lozano v. State, 359 S.W.3d 790, 810 (Tex.App.--Fort Worth 2012, pet. ref'd).

Under the standard, we believe the State proved its DWI case against Heffel. Officer Moore testified that when he pulled Heffel over at around 2 a.m., Heffel had alcohol on his breath, his speech was slurred, and his eyes were red and glassy. Heffel's answers to his questions were confusing or non-responsive. For example, when Officer Moore asked Heffel where he was coming from, Heffel responded several times that he was having hip surgery the next day. Heffel gave inconsistent statements about whether he had drunk alcohol, first saying that he had not had anything to drink before saying that he had one beer. Heffel exhibited six of six clues of intoxication when Officer Heffel administered the HGN test, and a State expert testified that Officer Heffel performed the HGN test correctly. Heffel also told Officer Moore that he had taken hydrocodone and that he should not have been driving. Paramedic Foust confirmed to the jury that patients taking hydrocodone are warned not to drive. Finally, following Heffel's arrest, Officer Moore found six cans of beer, some of which were opened and still contained beer. Viewing all trial evidence together in the light most favorable to the verdict, we hold that a fact finder could have rationally believed that Heffel committed DWI beyond a reasonable doubt.

Issue One is overruled.

Lay Testimony About Effects of Hydrocodone

In Issues Two and Three, Heffel contends that the trial court erred by allowing Officer Moore to testify about the effects of hydrocodone when (1) Officer Moore was not a qualified expert who could speak about hydrocodone's intoxicating effects, and (2) there was no evidence introduced that Heffel had actually ingested enough hydrocodone to affect his mental and physical faculties. The State responds, inter alia, that Heffel failed to preserve either issue for appellate review by failing to object to the testimony. We agree with the State.

Preservation of error is a prerequisite for appellate review. TEX.R.APP.P. 33.1. To preserve error, an appellant must make an objection that states “the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]” TEX.R.APP.P. 33.1(a)(1)(A).

Our review of the record shows that Heffel never objected to the admission of the testimony regarding hydrocodone. Instead, the “running objection” that Heffel cites to in his brief went only toward the issue of a divided-attention test performed by Officer Moore that was not part of the standard battery of field sobriety tests. That does not comport with either of the grounds Heffel complains about on appeal. See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009)(trial objection must comport with issue raised on appeal). Nor is it apparent from the record that the trial court understood Heffel to complain about Officer Moore improperly giving scientific testimony or that there was no factual predicate for Officer Moore's opinion testimony. See id. (issue may be preserved if complaint is clear from context). Because Heffel never explicitly or implicitly objected to the testimony raised in his appellate brief, the complaints are waived on appeal.

Issues Two and Three are overruled.

Testimony Regarding Heffel's Right to Counsel

In Issue Four, Heffel asserts that the trial court erred by allowing Investigator Brent Robbins to testify that a defendant is not entitled to counsel during a DWI interview after the DIC-24 form was read to him. The State counters that Investigator Robbins correctly testified that Heffel was not entitled to assistance of counsel during the DWI test.3

We need not delve into the intricacies of the right to counsel in breathalyzer cases to resolve this issue. Heffel does not argue that he was wrongfully denied the right to counsel before taking any sobriety tests. Rather, Heffel's appellate complaint is aimed at the admission of purportedly erroneous testimony given by Officer Moore about what the law required. Even if Officer Moore incorrectly stated the law—an issue we do not decide today—any error in the admission of the statement was harmless.

We disregard non-constitutional errors in the admission of evidence unless the wrongful admission affects the defendant's substantial rights. TEX.R.APP.P. 44.2(b). Heffel does not make clear in his brief how the admission of this testimony prejudiced him, nor is such prejudice apparent from the record. Given this, we cannot say that any error would merit reversal.

Issue Four is overruled.


None of Heffel's appellate points have merit. The judgment of the trial court is affirmed.


1.   We hear this case on transfer from the Second Court of Appeals in Fort Worth and apply that court's precedent to the extent required by TEX.R.APP.P. 41.3.

2.   Officer Moore testified he was never able to secure a blood sample from Heffel because he could not reach any of the on-duty judges to have them issue a warrant.

3.   We discern that Heffel is complaining about the following line of questioning between the prosecutor and Robbins:Q. Okay. The last thing I wanted to talk to you about was as a police officer, when is Miranda to be given?A. The Miranda warnings are required when a person is in custody by the -- by a police officer and are being interrogated or questioned or questioned to the point that the question is, excuse me, is designed to elicit an incriminating response from the person being questioned.Q. And in teaching other officers, do you teach them to read the DIC-24 prior to or after Miranda?A. Prior to.Q. And why do you teach them that way?A. Because you're not entitled to an attorney --MR. WOHR: Objection, Your Honor. This calls for a legal conclusion at this point.MS. MOLSBEE: If this -- if he knows why he teaches them that way --THE COURT: I will sustain the objection as to the way that the question was asked. Please rephrase the question.Q. (BY MS. MOLSBEE) You teach them -- you teach them to read the DIC-24 after Miranda?A. No.Q. Or, I'm sorry, before Miranda?A. Correct.Q. Okay. And do you know from your training and your experience whether or not someone is entitled to have an attorney present when they -- when the DIC-24 is read?MR. WOHR: Objection, Your Honor. Calls for a legal conclusion.THE COURT: I'll overrule that and let him answer the question.A. Yes, I know the answer to that question.Q. (BY MS. MOLSBEE) And are they?A. They are not.MR. WOHR: Objection, Your Honor. Calls for a legal conclusion.THE COURT: I'll overrule that and let him answer the question.MS. MOLSBEE: Pass the witness.


Copied to clipboard