                           NUMBER 13-13-00369-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JOSE ANGEL LERMA,                                                      Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 219th District Court
                        of Collin County, Texas.


                       MEMORANDUM OPINION
              Before Justices Garza, Benavides and Perkes
                Memorandum Opinion by Justice Garza
      Appellant, Jose Angel Lerma, appeals his third conviction for driving while

intoxicated (“DWI”), a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04(a),

49.09(b)(2) (West, Westlaw through 2013 3d C.S.). The trial court assessed punishment

at ten years’ imprisonment, suspended the sentence, and placed Lerma on community

supervision for seven years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (West,
Westlaw through 2013 3d C.S.). We affirm.1

                                          I. BACKGROUND

         Clayton Platt testified that he was employed as a highway patrol trooper and was

patrolling the Sam Rayburn Tollway in McKinney, Texas, at around 1:00 a.m. on May 26,

2012. Platt was parked in his marked patrol car on the northbound shoulder when he

heard a “loud, grinding noise coming up.” He observed “a passenger car on the access

road traveling northbound” with “what appears to [be] no tire on the front left and it’s just

sparking as it’s driving along, sparks coming out the sides and sparks coming out the

rear.” Platt drove up behind the car and activated his emergency lights. The driver, whom

Platt identified as Lerma, “[d]idn’t appear to react at all” to the emergency lights.

According to Platt, Lerma was “driving relatively slowly but weaving the whole time.”

Another officer pulled up alongside Lerma “in order to get [his] attention.” Platt used his

patrol unit’s public address system—“turned up as loud as it could be”—to demand that

Lerma stop. Eventually, after about a minute and a half, the car stopped. Platt removed

Lerma from the car at gunpoint. Because Lerma “wasn’t really complying,” another officer

“did a leg sweep” and “took him to the ground.”

         Platt stated: “At that point [we] went up and just started talking with him. We’re

talking with him, there’s an immediate strong odor of alcohol coming from his

breath. . . . His eyes were really glassy.” Platt therefore decided to conduct three

standardized field sobriety tests:        horizontal nystagmus, walk-and-turn, and one-leg

stand.       In order to determine whether Lerma was a good candidate for a horizontal



         1This appeal was transferred from the Fifth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).

                                                  2
nystagmus test, Platt asked Lerma about any prior head injuries. Lerma stated that he

“hit [his head] on the first-aid kit . . . at his office” but did not indicate that “he was still

having issues with [the injury].” Lerma also complained of “flu-like symptoms” and that

his head was hurting.           Platt determined that Lerma was a good candidate for the

horizontal nystagmus test. The horizontal nystagmus test showed clues of “lack of

smooth pursuit,” “distinct and sustained nystagmus at maximum deviation,” and “onset of

nystagmus prior to 45 degrees” in each eye. According to Platt, these results “certainly

indicated intoxication at that point.”

        In order to determine whether Lerma was a good candidate for the walk-and-turn

test, Platt asked Lerma if he had any leg or back injuries. Lerma told him that “a month

or two ago . . . a piece of steel hit him in the shin at work.” Platt testified: “So—he’d

already informed me that he worked at a data entry center, so I was a little—little confused

at this point at the—it’s a pretty dangerous data entry center to be having all these injuries

he had.” Lerma also “said he had a little pain in his back but nothing that would keep him

from walking.”2 Platt determined that Lerma was a good candidate for this test. After

administering the test, Platt observed two out of a possible eight clues of intoxication; in

particular, Lerma “failed to keep his balance during the instructions” and “did not touch

heel-to-toe as instructed.” Platt stated that, for this test, “two or more clues indicate

intoxication.”

        Finally, Platt administered a one-leg stand test. During this test, Lerma was asking




        2 When asked whether “for every test [Lerma] gave you a reason why he might have an injury in
that area,” Platt replied: “He did.” However, he did not believe those alleged injuries would affect his ability
to perform the sobriety tests because: “Not only did I ask him if he’s okay to perform them, but I didn’t see
any indication other than him saying that happened . . . that it was still affecting him.”

                                                       3
“confusing” questions and was “not really communicating effectively.” 3 Platt observed

three out of a possible four clues of intoxication; in particular, Lerma was “swaying back

and forth,” he put his foot down, and he hopped. Platt stated that, as with the walk-and-

turn test, the presence of two or more clues in this test indicates intoxication. Based on

the results of all three field sobriety tests, Platt placed Lerma under arrest for DWI.

        After the arrest, Platt placed Lerma in his patrol unit and asked for consent to take

a breath sample or a blood sample. Lerma refused to consent to either. However, Platt

stated that he was authorized by law to take a mandatory blood sample, see TEX. TRANSP.

CODE ANN. § 724.012(a) (West, Westlaw through 2013 3d C.S.),4 and so he transported

Lerma to the Medical Center of McKinney for that purpose. After the blood sample was

taken at around 2:15 a.m., Platt took Lerma to the Collin County Jail. Subsequent

analysis of the blood sample revealed an alcohol concentration of .06 grams per 100

milliliters, which is below the legal limit in Texas. See TEX. PENAL CODE ANN. § 49.01(2)(B)

(West, Westlaw through 2013 3d C.S.).

        Platt denied that Lerma ever mentioned that something unusual had happened to

him earlier that day. He denied that Lerma was hesitant or afraid to speak with him. Platt

stated that he never was aware of any information indicating that Lerma “might need



        3 Platt testified that, even though Lerma stated that he was heading to his home in Lewisville, Lerma

was traveling northbound, away from Lewisville. Platt agreed that, at one point, Lerma “[was] sure he [was]
in Lewisville and [the officers were] messing with him.”
         4 In fact, the mandatory blood draw statute requires an officer to take a breath or blood sample if

the officer has reliable information indicating that the DWI arrestee has two prior DWI convictions and the
arrestee refuses the officer’s request to submit to the taking of a sample voluntarily. See TEX. TRANSP.
CODE ANN. § 724.012(b)(3)(B) (West, Westlaw through 2013 3d C.S.). We have previously held that the
mandatory blood draw statute does not create a new and distinct exception to the Fourth Amendment
warrant requirement and that a blood draw is generally unconstitutional absent a warrant, exigent
circumstances, or consent. State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—
Corpus Christi Jan. 23, 2014, pet. granted). However, Lerma did not object to the admission of the blood
test results into evidence, and so we do not address that issue.

                                                     4
additional medical attention on that night.”

       Platt testified that the fact that the alcohol content of Lerma’s blood sample was

under the legal limit does not affect his opinion about whether Lerma was intoxicated

because “it’s pretty clear from the totality of circumstances that night with dealing with him

that he was intoxicated.” Platt opined that “[i]t’s possible he was[] intoxicated solely on

alcohol, he just can’t handle .06,” and that, considering the blood test results, “it’s very

possible that he also had something else in his system.” He also speculated that Lerma’s

blood alcohol concentration may have declined somewhat between the time Lerma was

initially stopped by police and the time the blood was taken.

       On cross-examination, Platt conceded that officers were unable to locate the tire

that had detached from Lerma’s car. He agreed that he had never been given training,

beyond “first responder basic training,” on how to identify symptoms of a stroke or other

neurological disorders. When asked whether it is possible that Lerma’s blood alcohol

concentration was below .06 at the time of driving, Platt replied: “Anything is possible,

sure.” He gave the same response to defense counsel’s question as to whether it was

possible that Lerma’s blood alcohol concentration increased from the time of driving to

the time of the blood draw.

       DPS Trooper Matthew Kasenic testified that, on the night in question, he observed

Lerma’s vehicle “drive past me northbound on the service road with a loud grinding noise

and saw sparks, missing a tire.” While pursuing the vehicle along with Platt, he noticed

that the car was missing a tire on the front driver’s side. He shined a light on the driver

and noticed that the driver was “staring straight ahead” and “had both hands on the

steering wheel at a ten and two position.” The car eventually stopped and Platt directed



                                               5
Lerma to get on the ground. According to Kasenic, Lerma did not comply with the order,

and so Kasenic “executed a leg sweep and placed the defendant on the ground behind

his vehicle and placed handcuffs behind his back.” Kasenic then searched Lerma for

weapons. Kasenic noted that Lerma’s “speech was slurred” and he “could detect a strong

odor of alcohol[ic] beverage.”

       Kasenic asked Lerma where he was headed and what he was doing. Lerma

replied that he was coming from Social 121, a bar located in Plano, and that he was

“headed home to Lewisville.” When Kasenic asked Lerma about the tire, Lerma “said

that he stopped to put air in it and he was just going home right down the street.” Kasenic

testified that these answers did not make sense because Lerma was traveling away from

Lewisville, which was “two cities away from where he was actually at,” and because there

was no tire into which Lerma could have put any air. Kasenic could not recall Lerma ever

mentioning anything about feeling badly or having any problem with his legs or his head.

Kasenic opined that Lerma was intoxicated that night, and the fact that Lerma’s blood

tested under the legal limit did not change his opinion.

       A video recording of the traffic stop was played for the jury.

       Andrew Macey, a DPS forensic scientist, testified that he analyzed the blood

sample taken from Lerma and that it contained 0.062 grams of alcohol per 100 milliltires

of blood, which is the under the legal limit of .08 grams per 100 milliliters. See id. He

also testified as follows regarding the rates of elimination and absorption in the blood:

       Absorption rate is pretty much the time it takes for your body to absorb one
       drink or several drinks, just depends on how many drinks you
       have. . . . Elimination is the amount that the time it takes for your body to
       actually eliminate the alcohol from your body.

       Because absorption is so tricky and being that everybody absorbs
       differently, different factors go into it, different types of alcohol absorb at
                                             6
       different rates. We just kind of like to have very wide range and say that
       one drink would basically raise your alcohol level .01 to .03 per hour, that is
       very broad. That’s not really known because everybody is different.

       Elimination is a little bit more known and a little bit more consistent. The[re
       a]re not as many factors that affect the elimination rate. So the range we
       use on that is a little bit tighter, and it’s still kind of wide, and we use point
       .01 to .02. It's probably closer to .015 to .018. But we use .01 to .02 just to
       give an idea of the range it could be.

Macey stated that absorption rate can depend on, among other things, whether the

subject is male or female, what type of drink was consumed, whether other drugs were

consumed, and if the subject was ill. Elimination rate “normally depends on” whether the

subject is an experienced drinker or an alcoholic. Based on a blood alcohol concentration

test result and the absorption and elimination rates, a “retrograde extrapolation” can be

performed “to work backwards to have an idea of what the number would be at earlier

time of the day.” However, according to Macey, “it’s very difficult” to make a retrograde

extrapolation when the time of the last drink consumed is not known.

       Macey opined that “[i]t is possible” that a person “could have consumed two beers,

been pulled over at 1:15 and then at 3:00 a.m. have an alcohol concentration of [.06].” In

Macey’s opinion, after an hour and 45 minutes of not drinking, a subject would be “more

on the elimination side than on the absorption side.” However, “[b]ecause the alcohol

curve goes up as you’re drinking and then you go down as you’re eliminating, there’s a

possibility in that hour and 45 minutes that you actually could be the same as you were

at the time of the draw or higher or lower.” He stated that, given Lerma’s blood test result

and the time elapsed since the traffic stop, his blood alcohol concentration at the time of

driving could have been “anywhere from .03 to .04” and “up to .08, .085.”

       Lerma testified that he is forty-two years old, that he has lived in the Dallas/Fort

Worth area for about twenty years, and that he has lived in Lewisville in particular for

                                               7
about six years. He works as an analyst at a data center in Lewisville. Lerma stated he

was not intoxicated on the night in question. He acknowledged that his memory regarding

what happened was not clear, but he stated that he suffered “flu-like symptoms” that day.5

He stated that he got off work at around 6:00 p.m. and later met some friends at Pier 121,

a marina and restaurant in Lewisville where alcohol is sold.6 Lerma testified that he “took

three beers with [him]” to Pier 121—because “from my experience, I knew my limit”—but

that he drank only two of them. While he was at Pier 121, he started getting a “really

massive headache” such that he “fe[lt his] head [was] about to explode.” His legs became

“wobbly and shaky” and his “vision started to go out after a while.” He stated he “couldn’t

focus” and “couldn’t think right.” Nevertheless, he testified: “I decided, you know, I just

could go home and sleep it off or something like that. So I thought I could drive and go

home, you know.”

           When asked how he knew that he only drank two beers if his memory was faded,

Lerma stated: “Because I—I told the officer there was another beer in the car, you know.

And, like I said, I knew my limits, after the second beer I already started feeling nauseated

and headache and stuff—with a headache.” The next thing he remembered was being

in jail.

           Lerma did not recall hitting anything with his car, driving on a rim, or how he ended

up in McKinney. He denied taking any illegal drugs that evening. He stated his headache



           5   Lerma elaborated:
           I just thought it was the flu, and I had to wait to get over it. It was one thing after another
           one, you know, allergies and then a cough, and then this stuffed nose and just—just like—
           I thought it was flu symptoms that I could just fight, you know, medication over the counter
           and get it over with.
           6   Lerma denied knowing about, or ever having been to, Social 121.

                                                         8
“lasted probably close to three months” and that he continued to have blurred vision for

“two, three days after” the night in question. He saw a doctor and was prescribed blood

pressure medication and antibiotics for a sinus infection. His symptoms did not go away,

however, which scared him. He did not see a specialist because he did not have

insurance at the time. He has since had other diagnostic tests. He is currently being

treated for cholesterol, high blood pressure, and “a bad nerve coming from my head back

over here.” He agreed with defense counsel’s suggestion that he is “being treated at this

time for possibly having an onset of a ministroke.” Lerma stated that a doctor informed

him that he experienced a ministroke, but a CAT scan of his brain “didn’t show anything

yet.” Lerma denied that his behavior on the night in question was the result of any

accidents suffered at work.

       Lerma stated that he knew that his behavior on the night in question was due to a

“medical issue,” not due to intoxication, because “two beers are not going to make me act

like that, the way I was acting; that’s not going to happen, no.”

       The jury convicted Lerma as charged and the trial court sentenced him as set forth

above. This appeal followed.

                                      II. DISCUSSION

       Lerma argues by two issues on appeal that (1) the evidence was insufficient to

support the conviction, and (2) the indictment was defective because it failed to define

intoxication.

A.     Evidentiary Sufficiency

       In reviewing the sufficiency of evidence supporting a conviction, we consider the

evidence in the light most favorable to the verdict to determine whether any rational trier



                                             9
of fact could have found the essential elements of the crime beyond a reasonable doubt.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports

conflicting inferences, we must presume that the trier of fact resolved any such conflicts

in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326

S.W.3d 195, 200 (Tex. Crim. App. 2010).

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). 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. Id. A hypothetically correct jury charge in this case would

state that Lerma is guilty if he: (1) operated a motor vehicle in a public place while he

was intoxicated; and (2) had twice been previously convicted of DWI as alleged in the

indictment. See TEX. PENAL CODE ANN. §§ 49.04, 49.09. “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.




                                              10
Id. § 49.01(2) (West, Westlaw through 2013 3d C.S.).7 The two definitions of “intoxicated”

are referred to as the “impairment” theory and the “per se” theory, respectively. Kirsch v.

State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).

        Lerma does not dispute that the evidence was sufficient to show that he operated

his vehicle in a public place or that he was twice previously convicted of DWI. He

contends solely that the evidence was insufficient to support a finding of intoxication. We

disagree.     Platt and Kasenic testified that Lerma drove his car without a front tire,

generating a trail of sparks. Platt stated that Lerma “[d]idn’t react at all” to his emergency

lights but instead drove slowly, “weaving the whole time,” and did not stop until Kasenic

pulled up alongside him and Platt used his public address system to order him to stop.

Platt testified that Lerma exhibited three clues of intoxication in the horizontal nystagmus

test; that he failed to keep his balance or “touch heel-to-toe” in the walk-and-turn test; and

that he swayed back and forth, put his foot down, and hopped during the one-leg stand

test. Kasenic stated that Lerma’s speech was slurred and both officers related that Lerma

gave nonsensical and confused answers to their questions. Crucially, the officers both

testified that there was a “strong odor” of alcohol coming from Lerma’s breath when he

was removed from the car. All of this evidence, taken together, would allow a reasonable

trier of fact to conclude beyond a reasonable doubt that Lerma did “not have[] the normal

use of mental or physical faculties by reason of the introduction of alcohol.” See TEX.

PENAL CODE ANN. § 49.02(1)(A); Kirsch, 306 S.W.3d at 745 (noting that “evidence that

would logically raise an inference that the defendant was intoxicated at the time of driving”




        7 For blood tests, “alcohol concentration” means the number of grams of alcohol per 100 milliliters

of blood. TEX. PENAL CODE ANN. § 49.01(1) (West, Westlaw through 2013 3d C.S.)

                                                   11
includes “erratic driving,” “post-driving behavior such as stumbling, swaying, slurring or

mumbling words” and “inability to perform field sobriety tests or follow directions”).

        Lerma contends that his “erratic behavior could be easily explained by

medical/neurological conditions.” Even assuming that is true, it was the jury’s prerogative

to believe or disbelieve that explanation. See Padilla, 326 S.W.3d at 200. It chose not to

believe that explanation, and because there was evidence to support its decision, we may

not disturb it.

        Lerma also argues that “it should be undisputed that there was insufficient

evidence to support that [his] blood alcohol concentration was of .08 or more.” See TEX.

PENAL CODE ANN. § 49.01(2)(B). It is indeed undisputed that Lerma’s blood sample

contained an alcohol concentration of .062, and that this is under the legal limit. See id.

However, Macey testified generally that a person’s alcohol concentration at the time of

driving may be higher or lower than the level established by the blood test results

depending on the length of time that elapsed between the driving and the blood test and

on the absorption and elimination rates.8 In any event, under the statute, the jury was

authorized to convict if it found that Lerma was intoxicated either under the “impairment”

or “per se” definitions.9 See id. § 49.01(2); Kirsch, 306 S.W.3d at 743. We have already


         8 Macey testified that, given the blood test results and the elapsed time between the arrest and the

blood draw, Lerma’s blood alcohol concentration at the time of driving could have been “anywhere from .03
to .04” and “up to .08, .085” depending on the rates of absorption and elimination. However, there was
confusion at trial as to how much time elapsed between the arrest and the blood draw. Platt testified that
the stop “was around 1:15 in the morning” and the blood sample was taken “probably about 2:10, 2:15 in
the morning”; but in questions posed to Macey, the prosecutor repeatedly referred to the time of the blood
draw as “3:00 a.m.” It appears that Macey assumed that the blood sample was taken at 3:00 a.m. in giving
his estimates regarding retrograde extrapolation. For this reason, we do not consider this specific testimony
probative as to Lerma’s potential alcohol concentration at the time of driving.
        9The jury charge in this case contained only the “impairment” definition of “intoxicated.” See TEX.
PENAL CODE ANN. § 49.01(2)(A) (West, Westlaw through 2013 3d C.S.). Generally, if there is evidence to
support both definitions of the term, both should be submitted in the jury charge. Kirsch v. State, 306
S.W.3d 738, 743 (Tex. Crim. App. 2010).

                                                    12
concluded that there was sufficient evidence to prove intoxication under the “impairment”

definition.   Accordingly, even if the evidence was insufficient to establish “per se”

intoxication, the conviction was nevertheless supported by sufficient evidence.

       We overrule Lerma’s first issue.

B.     Indictment

       By his second issue, Lerma argues that the indictment was defective because it

failed to define intoxication. He argues that “[t]he definition of intoxication as found in

[penal code section] 49.01 is essential to make the offense a crime, and is indispensable

to the indictment.”

       The State contends that Lerma waived the issue because he did not move to quash

the indictment or otherwise object to it prior to trial. We agree.

       If the defendant does not object to a defect, error, or irregularity of form or
       substance in an indictment or information before the date on which the trial
       on the merits commences, he waives and forfeits the right to object to the
       defect, error, or irregularity and he may not raise the objection on appeal or
       in any other postconviction proceeding.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West, Westlaw through 2013 3d C.S.). Because

Lerma did not present this argument to the trial court at any time, it has not been

preserved for appeal. See id.; see also TEX. R. APP. P. 33.1(a).

       Even if the issue had been preserved, it would not be meritorious. The United

States and Texas Constitutions grant criminal defendants “the right to fair notice of the

specific charged offense.” State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App.

2008) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10); see TEX. CODE CRIM. PROC.

ANN. art. 21.11 (West, Westlaw through 2013 3d C.S.). But in a DWI case, “the definitions

of ‘intoxicated’ are purely evidentiary matters” and “do not need to be alleged in a charging

instrument to provide a defendant with sufficient notice.” Barbernell, 257 S.W.3d at 256
                                             13
(Tex. Crim. App. 2008) (noting that the definitions “set forth alternative means by which

the State may prove intoxication, rather than alternate means of committing the offense”);

see Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).

       Lerma’s second issue is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.


                                                    DORI CONTRERAS GARZA,
                                                    Justice

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

Delivered and filed the
23rd day of April, 2015.




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