                             NUMBER 13-08-312-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


WAYNE ROWLAND,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela

      A jury convicted appellant, Wayne Rowland, of felony driving while intoxicated

(DWI). See TEX . PENAL CODE ANN . §§ 49.04, 49.09(b)(2) (Vernon 2003 & Supp. 2009).

The trial court assessed punishment at ten years’ imprisonment. By one issue, appellant

challenges the factual sufficiency of the evidence to support the conviction. We affirm.
                                 I. FACTUAL BACKGROUND

       In the evening of July 30, 2007, Corpus Christi police officer Jason Rhodes was

patrolling North Staples Street, when he stopped a Corvette convertible, which had expired

temporary license plate tags. The vehicle, driven by appellant, took approximately an

entire block to come to a stop. At trial, Officer Rhodes testified that this was an unusually

long distance to stop, given the speed of the vehicle.

       Approaching the vehicle, Officer Rhodes noted two occupants in the vehicle and

smelled alcohol emanating from the car and from appellant. He spotted some open

containers of alcohol in the vehicle. Officer Rhodes also noted appellant’s generally

disheveled clothing, and asked appellant to exit the vehicle so that he could better

determine if he was intoxicated. Appellant had trouble standing and used the door of the

vehicle to steady himself as he exited. Officer Rhodes placed appellant in the backseat

of his police car and radioed for backup. Shortly thereafter, additional officers arrived on

the scene to ensure that “nothing happened with the other occupant of the vehicle.”

       While appellant was talking in the back of the police car, Officer Rhodes noticed a

strong odor of alcohol on appellant’s breath, that his eyes were bloodshot and glassy, and

that his speech was slurred. Appellant provided Officer Rhodes with some basic contact

information and stated that he had not been drinking. Officer Rhodes testified that at that

point, he believed appellant was intoxicated. Officer Rhodes placed appellant in handcuffs

and took him to the city detention center to administer the standardized field sobriety test

in a controlled environment.

       At the detention center, appellant refused the field sobriety test, as well as the

breath test, despite being warned that a failure to comply with the test could result in a

suspension of his driver’s license. Officer Rhodes further testified that refusing the tests
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makes it no less likely that the test subject is intoxicated. After leaving appellant at the

detention center, Officer Rhodes conducted no further investigation of the case.

        On cross-examination, Officer Rhodes was questioned about leg and back injuries

that appellant may have had, but was unable to answer the question.1 He testified that the

fact that appellant struggled to get out of the Corvette convertible may have been because

the car is particularly low to the ground and many people would require support when

exiting. He also stated that driving a convertible could have an effect on the appearance

of the driver’s eyes. However, during re-direct examination, Officer Rhodes testified that

he was not aware of appellant’s alleged injuries. It was his opinion that appellant had lost


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          At the guilt-innocence phase of the trial the following dialogue, and absence of the report pertaining
to these questions, prevented Officer Rhodes from answering the question pertaining to appellant’s alleged
injuries:

        Defense Counsel:           … And you also asked him if he had any physical defects, and he told you,
                                   yes, a leg and back injury?

        Trial Judge:              Do you have a copy of the report? W ould you like to look at your report to
                                  refresh your recollection, Officer?

        Officer Rhodes:           Yes, m a’am , I would.

        Defense Counsel:          I m ay not have that one.

        Trial Judge:              Mr. Feil, do you?

        Prosecutor:               No, Your Honor.

        Defense Counsel:          I don’t have that part of it, Your Honor.

        Trial Judge:              Okay.

        Defense Counsel:           But in general, Officer, do you rem em ber him answering your correctly?

        Officer Rhodes:           I rem em ber going through som e questions because I m arked it in m y report
                                  that he did answer som e of m y questions.

Later, on re-direct exam ination, the issue of appellant’s alleged injuries was revisited:

        Prosecutor:               And does the Defendant [appellant] in your knowledge have any leg injury?

        Officer Rhodes:           Not— not any that I’m aware of. I had only m et Mr. Rowland one other tim e
                                  prior to this night.

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the normal use of his mental and physical faculties while operating a motor vehicle in a

public place.

                                        II. DISCUSSION

       By a single issue, appellant challenges the factual sufficiency of the evidence to

support his conviction. Specifically, he contends the evidence is insufficient to prove he

was intoxicated at the time of the stop.

A. Standard of Review

       In conducting a factual sufficiency review, only a single question must be answered:

“Considering all of the evidence in a neutral light, was a jury rationally justified in finding

guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App.

2008). There are two different ways that evidence can be found factually insufficient: (1)

if the evidence supporting the conviction is too weak to support the fact finder’s verdict, or

(2) after considering conflicting evidence, the jury’s verdict is “against the great weight and

preponderance of the evidence.” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App.

2009) (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). Also,

the court of appeals must defer to the findings of the jury. Id. The court of criminal

appeals has established three “‘basic ground rules’ implementing this standard.” Id. First,

the appellate court must consider all of the evidence in a neutral light, as opposed to in a

light most favorable to the verdict. Id. Next, the appellate court, “may only find the

evidence factually insufficient when necessary to ‘prevent manifest injustice.’” Id. (quoting

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). Finally, the appellate court

must explain why the evidence is either too weak to support the verdict, or why the

conflicting evidence greatly weighs against the verdict. Id. While a jury verdict is afforded

less deference in a factual sufficiency review, an appellate court may not, “override the
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verdict simply because it disagrees with it.” Id. Likewise, an appellate court may not find

the evidence factually insufficient because there are multiple reasonable explanations or

theories of causation. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009).

       Our review of a factual sufficiency challenge should be examined under the

principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 281.

“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 particular offense for which the

defendant was tried.” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

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

B. Applicable Law

       A person commits an offense if he or she operates a motor vehicle in a public place

while intoxicated. Hartman v. State, 198 S.W.3d 829, 834 (Tex. App.–Corpus Christi 2006,

pet. dism’d); see TEX . PENAL CODE ANN . § 49.04(a) (Vernon 2003 & Supp. 2009).

“Intoxicated” is defined as “not having the normal use of mental or physical faculties by

reason of the introduction of alcohol ....” Id. § 49.01(2)(A) (Vernon 2003 & Supp. 2009).

If the State can prove that a defendant has two previous DWI convictions, the DWI offense

becomes a felony of the third degree. Id. § 49.09(b)(2) (Vernon 2003 & Supp. 2009).

C. Analysis

       The State presented evidence showing that appellant had two prior DWI convictions

and that he was driving a motor vehicle on a public road. Appellant contends that the State

presented insufficient evidence on the intoxication element of DWI by only calling one

officer to testify when other officers were present at the scene of the traffic stop. This

Court has stated that an officer’s testimony that a person is intoxicated provides sufficient
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evidence to establish the element of intoxication. Hartman, 198 S.W.3d at 835; see also,

Ortiz v. State, No. 13-00-00311-CR, 2001 WL 892824, at *1 (Tex. App.–Corpus Christi July

5, 2001, pet. dism’d) (mem. op., not designated for publication); Kuemmel v. State, No. 13-

99-00445-CR, 2000 WL 34411068, at *1 (Tex. App.–Corpus Christi June 1, 2000, no pet.)

(mem. op., not designated for publication). Additionally, testimony from the other officers

present at the scene is not necessary because “uncorroborated testimony of an arresting

officer is sufficient to prove the element of intoxication.” Little v. State, 853 S.W.2d 179,

183 (Tex. App.–Corpus Christi 1993 no writ) (citing Annis v. State, 578 S.W.2d 406, 407

(Tex. Crim. App. 1979)). Thus, Officer Rhodes’s testimony alone is sufficient evidence for

the State to satisfy its burden of proof.

       Appellant did not testify in his own defense, therefore Officer Rhodes’s testimony

was the primary source of evidence at trial. When appellant refused the field sobriety

tests, Officer Rhodes’s conclusion that appellant was intoxicated was based on other

indicia, namely that: (1) appellant took an unnecessarily long distance to stop his vehicle;

(2) an odor of alcohol emanated from appellant’s vehicle and person; (3) open containers

of alcohol were present in appellant’s vehicle; (4) appellant’s eyes were glassy and

bloodshot; (5) appellant used the car door for support when exiting the vehicle; (6)

appellant’s speech was slurred; (7) appellant’s clothing was disheveled; and (8) appellant

had no apparent leg or back injuries. Officer Rhodes’s testimony, which is arguably

contrary, revealed that: (1) appellant appeared coherent and was able to respond when

questioned by him; (2) driving with a convertible top down could have affected the

appearance of an occupant’s eyes; and (3) exiting a vehicle so low to the ground could

require the support of leaning on the door.


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       This case is similar to Haskins v. State, 960 S.W.2d 207, 209 (Tex. App.–Corpus

Christi 1997, no pet.). There, the conviction was affirmed despite the fact that Haskins, the

defendant, did not complete a breathalyzer test. The jury’s determination in that case was

made on a police officer’s testimony of other indicia of intoxication, such as the smell of

alcohol, slurred speech, and using the vehicle for support. Id. at 208. Here, appellant’s

alleged leg and back injuries were not substantiated with any testimony, and like in

Haskins, no medical evidence of these injuries was provided. See Id. at 209.

       We find that the contrary evidence does not greatly outweigh the proof of appellant’s

intoxication. See Laster 275 S.W.3d at 518. Though appellant based his challenge on the

credibility of the witness’s testimony, the jury is the exclusive judge of the facts, the

credibility of a witness, and the weight to give the witness’s testimony. See Lancon v.

State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (stating that “almost complete

deference” must be given to a jury decision when that decision is based upon an evaluation

of credibility). As stated previously, we will not overturn a jury’s determination in the

absence of a “manifest injustice.” Laster, 275 S.W.3d at 518.

       Viewing all the evidence in a neutral light, we find that the evidence supporting

conviction is not too weak to support the jury’s finding of guilt beyond a reasonable doubt,

nor is the verdict against the great weight and preponderance of the evidence. See

Watson, 204 S.W.3d at 417. Therefore, we hold that the evidence is factually sufficient

to support the jury’s determination that appellant was intoxicated at the time of the stop and

to support the verdict. Appellant’s sole issue is overruled.




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                                     III. CONCLUSION

       We affirm the trial court’s judgment.




                                                   ROSE VELA
                                                   Justice


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

Delivered and filed the 29th
day of June, 2010.




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