                          NUMBER 13-17-00433-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


VICTOR HUGO SUAREZ,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


               On appeal from the County Court at Law No. 2
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa
             Memorandum Opinion by Justice Hinojosa

                                   I. INTRODUCTION

      A jury convicted appellant Victor Hugo Suarez of driving while intoxicated with a

blood alcohol concentration of .15 or more, a Class A misdemeanor. See TEX. PENAL

CODE ANN. §§ 12.21, 49.04(d) (West, Westlaw through 2017 1st C.S.). By four issues,

Suarez contends the trial court erred because it: (1) convicted with legally insufficient
evidence; (2) issued erroneous jury instructions; (3) improperly admitted police reports

over objection; and (4) wrongly denied a motion to suppress.

      We affirm.

                                    II. BACKGROUND

      On December 22, 2011, Suarez was involved in a two-vehicle collision which

occurred at the intersection of Nolana and McColl streets in McAllen, Hidalgo County,

Texas. He was arrested and charged with driving while intoxicated.

A.    The Suppression Hearing

      Prior to a trial on the merits, Suarez’s attorney filed a motion to suppress. Officer

Pedro Hernandez, a fourteen-year veteran of the McAllen Police Department, testified as

the arresting officer. During the suppression hearing, the State asked Officer Hernandez

to identify Suarez in the courtroom. Officer Hernandez replied that he could not because

the arrest was made three years earlier. The State then attempted to refresh Officer

Hernandez’s memory of Suarez with the DIC-23 “Peace Officer’s Sworn Report,” which

included a copy of Suarez’s driver’s license. See TEX. R. EVID. 612. Suarez’s attorney

objected, contending that Officer Hernandez should remember Suarez from his personal

knowledge and not from a driver’s license. The following exchange occurred:

      State:        Judge, our response would be that this is part of the case file
                    we received and that he is allowed to refresh his memory
                    based on that.

      Court:        Yeah, but do you have anything to show at that point before
                    he makes that determination?

      Hernandez: I did indicate on my report the driver’s license number [is] how
                 he identified himself.


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       The trial court allowed the State to proceed. Officer Hernandez reviewed his

report and was then able to identify the defendant.        Suarez’s attorney re-urged her

objection, which the trial court overruled. The court eventually denied the motion to

suppress.

       After the hearing, the trial court issued Findings of Fact and Conclusions of Law.

The court found that although Officer Hernandez initially could not identify Suarez, he did

after refreshing his memory with his report:

       10.     The Court FINDS that, during said Motion to Suppress, Hernandez
               was initially unable to identify the Defendant in court.

       11.     The Court FINDS that the Defendant identified himself to Hernandez,
               at the scene of the accident, by providing his driver’s license. The
               Court FINDS that the DIC-23 report was provided in the State’s case
               file.

       12.     The Court FINDS that Hernandez properly identified and
               authenticated his signature on the DIC-23, presented by the State.

       13.     The Court FINDS that, after refreshing his memory with the driver’s
               license in the DIC-23, Hernandez was able to properly identify the
               Defendant in court.

       The trial court further concluded that “upon claiming insufficient recollection, peace

officers may refer to their offense report to refresh their memory, and may then testify.

This testimony may be given, regardless if the testimony is identical to the contents of

their offense report.”

B.     Trial

       Officer Hernandez testified again at trial. He recalled that after he arrived at the

accident scene on the night in question, he noticed that Suarez had “slurred speech, and

glassy eyes, and unsteady balance, and an odor of alcohol emitting from his breath.”

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Based on these observations, the officer decided to conduct field sobriety tests to

determine if Suarez was intoxicated.       Officer Hernandez performed three tests on

Suarez: (1) the horizontal gaze nystagmus (HGN); (2) the one-leg stand; and (3) the

walk-and-turn. Officer Hernandez noted that Suarez had “involuntary jerking” of the eyes

while performing the HGN, a sign of intoxication. He also noted that Suarez swayed,

used his arms to balance, and put his foot down during the one-leg stand, and failed to

walk heel-to-toe and again used his arms to balance during the walk-and-turn. Based

on Suarez’s performance of these tests, Officer Hernandez took Suarez into custody for

driving while intoxicated.

       Officer Hernandez then transported Suarez to McAllen Police Department, where

he read Suarez his Miranda warnings and asked him questions from a “DWI Interview

Questionnaire.” During the interview, Suarez admitted to driving and drinking “three or

four shots” of “Jack Daniel’s” one hour prior to driving that evening. Officer Hernandez

wrote all of Suarez’s answers to the questions onto the questionnaire form. After the

interview, Suarez consented to a breathalyzer test. The test measured Suarez’s blood

alcohol concentration to be .163, over double the legal limit.

       Officer Hernandez videotaped the interview and breathalyzer test.         The court

admitted State’s Exhibit # 1, the DVD video of the interview and breath test, into evidence.

There was no objection. The State then attempted to admit State’s Exhibit # 3, the actual

written DWI Interview Questionnaire where Officer Hernandez had written down Suarez’s

answers to the questions. The exhibit was admitted over objection. The court also

admitted Exhibit # 6, the “Texas Peace Officer’s Crash Report,” over objection.


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       On cross-examination, Officer Hernandez admitted that he did not see Suarez

driving when he arrived at the accident scene; instead, he testified that all parties were

already outside of their vehicles. He also disclosed that he learned how to conduct field

sobriety tests through an eight-hour training course at the McAllen Police Department,

but that his certification had expired at the time of Suarez’s arrest.

       Officer J.R. Razo testified. Officer Razo shared that he is one of the McAllen

Police Department’s certified Intoxilyzer operators. He renews his certification every

year with the Texas Department of Public Safety. He stated that the Intoxilyzer 5000

instrument used to test Suarez was properly serviced and calibrated when Suarez was

tested.   Mary Ann Perales, technical supervisor for the Intoxilyzer 5000, also verified

that the instrument was properly functioning at the time of Suarez’s breath test.

       The jury found Suarez guilty of driving while intoxicated with a blood alcohol

concentration of .15 or more, a Class A misdemeanor.                See TEX. PENAL CODE

ANN. §§ 12.21, 49.04(d). The trial court sentenced Suarez to a $400 fine and a year in

jail, probated for eighteen months. This appeal ensued.

                                       III. DISCUSSION

A.     Legal Sufficiency of the Evidence

       Suarez’s first issue asserts that the evidence is insufficient to support his DWI

conviction. Specifically, Suarez argues the jury charge required the State to prove that

Suarez introduced “alcohol, a drug, a controlled substance, and a combination of two or

more of these substances” into his body, not “alcohol, a controlled substance, or a

combination of two or more of these substances.” Suarez argues that the State had to


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prove the conjunctive, not the disjunctive, to establish intoxication and that it failed to do

so.

       1. Standard of Review and Applicable Law

       When reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict and determine whether a rational factfinder could have found

the elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d

743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19,

(1979)). In making this review, we consider all evidence in the record, whether it was

admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.

2013). We also consider direct and circumstantial evidence, as well as any reasonable

inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

        Under this review, we do not re-evaluate the weight and credibility of the evidence

or substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of

witnesses and of the weight given to their testimony, any conflicts or inconsistencies in

the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103,

111 (Tex. Crim. App. 2000). To be entitled to a reversal of conviction on an insufficiency

of the evidence claim, appellant must show that no rational jury could have found all of

elements of the offense beyond a reasonable doubt. Id.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773


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(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

(en banc)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the offense for which the

defendant was tried. Id.

       When there is a variance in the jury charge, only a “material” variance—one that

actually prejudices a defendant’s substantial rights—will render the evidence insufficient.

Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018).              A material

variance occurs when the indictment either: (1) fails to adequately inform the defendant

of the alleged charge, or (2) subjects the defendant to the risk of being prosecuted later

for the same crime. See id.

       The Texas Court of Criminal Appeals has recognized three different categories of

variances in jury charges:

       (1) a statutory allegation that defines the offense; not subject to materiality
           analysis, or, if it is, is always material; the hypothetically correct jury
           charge will always include the statutory allegations in the indictment;

       (2) a non-statutory allegation that is descriptive of an element of the offense
           that   defines     or    helps     define    the     allowable    unit   of
           prosecution; sometimes material; the hypothetically correct jury charge
           will sometimes include the non-statutory allegations in the indictment
           and sometimes not;

       (3) a non-statutory allegation that has nothing to do with the allowable unit
           of prosecution; never material; the hypothetically correct jury charge will
           never include the non-statutory allegations in the indictment.

Id. (emphasis in original) (footnotes removed).




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       In sum, in a sufficiency review, appellate courts can tolerate a variance in the

charge if it is not so great that the proof at trial “shows an entirely different offense” than

what was alleged in the charging instrument. Id.

       2. Analysis

       In the underlying case, although the jury was charged in the conjunctive—requiring

proof of intoxication “by introduction of alcohol, a drug, a controlled substance, and a

combination of two or more of these substances”—we review the sufficiency of the

evidence against a hypothetically correct jury charge. A hypothetically correct charge for

DWI would instruct the various manners and means of intoxication in the disjunctive. See

TEX. PENAL CODE ANN. § 49.01(2)(A) (defining “intoxication” as “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”); Malik, 965 S.W.2d 234; see also Ronk v. State,

250 S.W.3d 467, 470 (Tex. App—Waco 2008, pet. ref’d) (“Although the jury charge in this

case submitted these alternatives in the conjunctive, a hypothetically correct jury charge

would have submitted them in the disjunctive.”).

       Officer Hernandez testified that he responded to a two-vehicle collision on

December 22, 2011. When he arrived at the accident scene, he noted that Suarez had

“slurred speech, and glassy eyes, and unsteady balance, and an odor of alcohol emitting

from his breath.” Suarez performed three standardized field sobriety tests and showed

clues of intoxication in each of these tests.      Some of these clues were nystagmus,

swaying, balancing himself with his arms, and failing to walk heel-to-toe.           Although


                                              8
Officer Hernandez’s certification to administer these exams may have lapsed, this fact

goes to the weight and not the admissibility of the field sobriety test evidence.

See Wesbrook, 29 S.W.3d at 111. The jury had the opportunity to evaluate Officer

Hernandez’s credibility as a fourteen-year law enforcement officer when he administered

these tests.

       The record further included a video wherein Officer Hernandez used a DWI

Interview Questionnaire to ask Suarez questions about the accident at the McAllen Police

Department. The video reflects that Suarez admitted to driving his vehicle one hour after

drinking “three or four” shots of “Jack Daniel’s” whiskey. Suarez also consented to a

breathalyzer test which showed his blood alcohol concentration to be .163 at the time the

analysis was performed.       This result is double the legal limit.     And two separate

witnesses verified the proper functioning of the breathalyzer instrument used to test

Suarez’s blood alcohol concentration.

       We find the evidence legally sufficient to sustain Suarez’s conviction.           The

variance in the jury charge, which required the State to prove intoxication “by introduction

of alcohol, a drug, a controlled substance, and a combination of two or more of these

substances” was not so material or great that the proof at trial “showed an entirely different

offense” than what was alleged in the charging instrument. See Ronk, 250 S.W.3d at

470. Suarez was adequately informed of the DWI charge alleged against him and there

is no danger that he can be prosecuted for the same crime later. Ramjattansingh, 548

S.W.3d at 547. Measuring the weight of the evidence against a hypothetically correct

charge, we conclude that legally sufficient evidence supports Suarez’s conviction.


                                              9
       We overrule Suarez’s first issue.

B.     The Jury Charge

       By his second issue, Suarez contended that the jury charge contained egregious

error because it contained a theory of intoxication not supported by the evidence. Again,

Suarez did not object to the jury instruction regarding intoxication by “a drug, a controlled

substance, and a combination of two or more of these substances” (emphasis in original).

Suarez asserts that the charge as written in the conjunctive egregiously harmed him.

       1. Standard of Review and Applicable Law

       In analyzing a jury charge issue, we first determine whether error exists. See

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (en banc) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).

If we find error, then we consider whether the error was harmful under the appropriate

standard. Tottenham, 285 S.W.3d at 30; see also Warner v. State, 245 S.W.3d 458, 461

(Tex. Crim. App. 2008) (“The failure to preserve jury-charge error is not a bar to appellate

review, but rather it establishes the degree of harm necessary for reversal.”). And “trial

courts are obliged to instruct juries on ‘the law applicable to the case,’ which includes the

statutory definitions that affect the meaning of the elements of the offense.” Ouellette v.

State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); see also TEX. CODE CRIM. PROC. ANN.

art. 36.14 (West, Westlaw through 2017 1st C.S.).

       Suarez’s attorney did not object to the jury charge. Therefore, any potential error

in the charge is reviewed only for “egregious harm.” Oursbourn v. State, 259 S.W.3d

159, 174 (Tex. Crim. App. 2008). “This is a difficult standard to meet and requires a


                                             10
showing that the defendants were deprived of a fair and impartial trial.” Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013). “[T]he error must have affected the very

basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive

theory.”   Id.   In determining whether egregious harm is shown, we look at the

entire jury charge, the state of the evidence, the arguments of counsel, and any other

relevant information revealed by the whole record of the trial. Id. This analysis is fact-

specific and done on a case-by-case basis. Arrington v. State, 451 S.W.3d 834, 840

(Tex. Crim. App. 2015).

       2. Analysis

       The first step of our analysis is to determine whether there was error in the jury

charge.    We answer this question in the affirmative.         The charge was erroneous

because the use of the conjunctive “and” instead of the disjunctive “or” in the jury charge,

discussing the ways Suarez could have become intoxicated, was incorrect. See TEX.

PENAL CODE ANN. § 49.01(2)(A).

       Having found error, the second step of our analysis is to determine whether Suarez

suffered “egregious harm.” See Almanza, 686 S.W.2d at 174. Based on our review of

the record, we find no egregious harm. Suarez and his attorney understood that he was

on trial for driving while intoxicated with a blood alcohol concentration of .15 or more, a

Class A misdemeanor. See TEX. PENAL CODE ANN. §§ 12.21, 49.04(d). The evidence

adduced at trial—from Suarez’s admission to driving his vehicle one hour after drinking

three to four shots of whiskey, to failing the standardized field sobriety tests, to recording

a .163 on the properly functioning Intoxilyzer 5000—supports the jury’s conviction. Our


                                             11
factual review of the Suarez’s case record does not show that the charge error affected

the basis of his case, deprived him of a valuable right, or vitally affected a defensive

theory. See Nava, 415 S.W.3d at 298.

       We overrule Suarez’s second issue.

C.     The Admission of the DWI Interview Form and Police Report

       Suarez’s third issue contended the trial court committed reversible error in

admitting Exhibit # 3, the “DWI Interview Questionnaire,” and Exhibit # 6, the “Texas

Peace Officer’s Crash Report,” because both documents constituted inadmissible

hearsay. Suarez argues that this “was extremely harmful since there was debate over

whether Suarez was driving and the police report placed Suarez behind the wheel.”

Suarez further claimed that this evidence bolstered the State’s case that he had been

drinking prior to the accident.

       1. Standard of Review and Applicable Law

       We review the admission of evidence under an abuse of discretion standard.

Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996) (citing Montgomery v.

State, 810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990)). A reviewing court should not

reverse a trial judge whose ruling was within the “zone of reasonable disagreement.” Id.

at 102; Montgomery, 810 S.W.2d at 391. “The mere fact that a trial judge may decide a

matter within his discretionary authority in a different manner than an appellate judge in

a similar circumstance does not demonstrate that an abuse of discretion has occurred.”

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985) (citing Sw. Bell

Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965)).


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       2. Analysis

       The court admitted the DVD video of Suarez’s DWI interview at the McAllen Police

Department.     Suarez did not object to this.        Because the video showed Officer

Hernandez asking Suarez the questions from the DWI Interview Questionnaire, this

information—including Suarez’s admission of drinking “three or four shots” of “Jack

Daniel’s” and then driving one hour later—was already in evidence. “When a defendant

offers the same testimony as that objected to, or the same evidence is introduced from

another source, without objection, the defendant is not in position to complain on appeal.”

Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981). We overrule

Suarez’s third issue because we find that he waived it when he failed to object to the

admission of the videotape. See TEX. R. APP. P. 33.1(a)(1). Moreover, because this

information was already in evidence, any error in admitting it was harmless. See id. R.

44.2(b).

D.     Motion to Suppress

       Suarez’s fourth issue argues that the court erred by denying his motion to suppress

because Officer Hernandez improperly reviewed his offense report before identifying

Suarez during the suppression hearing. During the hearing, Officer Hernandez claimed

he could not recognize the defendant because the arrest was made three years prior.

The State then, over objection, refreshed Suarez’s memory with Suarez’s driver’s license.

In the trial court’s “Findings of Fact and Conclusions of Law,” the court held that, “upon

claiming insufficient recollection, peace officers may refer to their offense report to refresh

their memory, and may then testify.”


                                              13
       1. Standard of Review and Applicable Law

       We apply a bifurcated standard of review on motions to suppress, giving “almost

total deference to a trial court’s determination of historical facts” and reviewing de

novo the court's application of the law of search and seizure. See Anderson v. Bessemer

City, 470 U.S. 564, 575 (1985) (reviewing courts defer to trial court findings of fact unless

clearly erroneous); Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013);

Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000); Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc) (explaining that we defer to

the trial court “especially when the trial court's fact findings are based on an evaluation of

credibility and demeanor”).

       2. Analysis

       Here, we give total deference to the trial court’s finding that Suarez originally

identified himself to Officer Hernandez at the accident scene with his driver’s license.

We further defer to the finding that, although Officer Hernandez initially could not identify

Suarez in the courtroom because the suppression hearing was three years after the

arrest, he was able to after refreshing his memory with his police report.

       Baker v. State provides further guidance on this issue. 177 S.W.3d 113, 123 (Tex.

App.—Houston [1st Dist.] 2005, no pet.).          In Baker, the Houston appellate court

discussed the issue of law enforcement officers using their reports to refresh their

memories while testifying:

       Although a law-enforcement officer’s report is inadmissible under rule
       803(8)(B), well-settled precedent interpreting rule 611 of the Rules of
       Evidence recognizes that the officer may refer to his report to refresh his
       memory and may then testify in open court from his refreshed

                                             14
       memory. See McCoy v. State, 877 S.W.2d 844, 845 (Tex. App.—Eastland
       1994, no pet.). It is not unreasonable, therefore, to anticipate that a police
       officer will refer to the offense report during trial to refresh his memory of
       the events and that the officer will testify consistently with his police report.

Baker, 177 S.W.3d at 123.

       After giving total deference to the trial court’s findings that Officer Hernandez

properly refreshed his memory with his police report, and reviewing the application of the

law de novo, we conclude that the trial court did not err in denying Suarez’s motion to

suppress. We overrule Suarez’s fourth issue.

                                      IV. CONCLUSION

       Having overruled all of Suarez’s issues on appeal, we affirm the trial court’s

judgment.

                                                                 LETICIA HINOJOSA
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of May, 2019.




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