             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                           APRIL SESSION, 1999


                                                           FILED
STATE OF TENNESSEE,           )                         April 20, 1999
                              )   No. 02C01-9806-CR-00196
      Appellee                )                       Cecil Crowson, Jr.
                              )   SHELBY COUNTY       Appellate C ourt Clerk
vs.                           )
                              )   Hon. Chris Craft, Judge
RAYMOND L. SUGGS,             )
                              )   (Driving on a revoked license,
      Appellant               )   second offense; DUI, third offense)



For the Appellant:                For the Appellee:

AC Wharton                        Paul G. Summers
District Public Defender          Attorney General and Reporter

Walker Gwinn                      Patricia C. Kussmann
Asst. Public Defender             Assistant Attorney General
201 Poplar Avenue                 Criminal Justice Division
Memphis, TN 38103                 425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
(ON APPEAL)                       Nashville, TN 37243-0493


Tarik B. Sugarmon                 William L. Gibbons
Asst. Part-Time Public Defender   District Attorney General
201 Poplar Avenue, Second Floor
Memphis, TN 38103                 Thomas Hoover
                                  Asst. District Attorney General
(AT TRIAL)                        Criminal Justice Complex, Suite 301
                                  201 Poplar Avenue
                                  Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Raymond L. Suggs, was found guilty by a Shelby County jury of

driving on a revoked license, second offense, and driving under the influence, third

offense. The trial court imposed concurrent sentences of five months for driving on a

revoked license and eleven months, twenty nine days, suspended after service of five

months, for driving under the influence. In his sole issue on appeal, the appellant

contends that the evidence is insufficient to support his conviction for driving under the

influence, third offense.



       After review of the record, we affirm.



                                      Background



       On June 29, 1996, Memphis Police Officer Frank Winston was on patrol

traveling westbound on South Parkway. At approximately 10 p.m., he observed a red

Ford Grenada fail to make a complete stop at a traffic sign. The Grenada proceeded

eastbound on South Parkway. Officer Winston followed the vehicle and was able to

effect a traffic stop at the I-240 overpass, approximately one and one-half miles from

the site of the infraction.



       As Officer Winston approached the vehicle, he was able to observe two people

in the car. He asked the driver, subsequently identified as the appellant, to exit the

vehicle, at which time Officer Winston observed that the appellant’s eyes were blood

shot. He also noticed that the appellant was swaying, to such extent that Officer

Winston reached for the appellant to prevent him from being hit by oncoming traffic.

When the appellant failed to produce a driver’s license, Winston placed the appellant

in the rear seat of his patrol car. At this point, the appellant became argumentive and

Officer Winston noticed a strong odor of alcohol on the appellant.


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       After performing standard identification checks on both the appellant and the

passenger, Winston discovered that the passenger had an outstanding warrant for his

arrest and the appellant’s driver’s license had been revoked. The passenger was also

placed in the patrol car and Winston radioed his partner, Officer Robert Hardy, to

transport the passenger to the Criminal Justice Center.



       While in the rear of the patrol car, the appellant began shaking. Officer Winston

believed the appellant was having a seizure and requested an ambulance be sent to

the scene. When the paramedics arrived, they examined the appellant and determined

that he was not having a seizure. Within minutes of their arrival, the appellant

appeared “normal.”



       Officer Hardy, who had arrived at the scene shortly before the paramedics,

observed that the appellant had a strong odor of alcohol about him and was very

combative. Because of the appellant’s behavior and appearance, Winston requested

that the Metro DUI van be dispatched to the scene. The appellant remained in the rear

seat of Winston’s patrol car. At some point, the appellant attempted to flee from the

car. Although he attempted to knock Officer Hardy down, Hardy was physically able

to subdue and restrain the appellant.



       Shelby County Deputy Sheriff Alvin Dortch, the alcohol and drug technician with

the Metro DUI unit, along with Officer Winston requested that the appellant submit to

a field sobriety test and a blood alcohol content test. Dortch, W inston, and Hardy all

testified at trial that the appellant refused any testing and continually cursed at the

officers. Deputy Dortch confirmed Officer Winston’s and Officer Hardy’s observations

that the appellant smelled strongly of alcohol, was combative with the arresting officers,

had blood shot eyes, swayed upon standing, and had slow muscle reflex response.

Officer Winston arrested the appellant for driving under the influence and transported

him to the jail.


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       At trial, proof was introduced that the appellant had pled guilty in 1990 and 1994

to driving under the influence and had pled guilty to driving on a revoked license in

1994. Although the appellant did not testify at the guilt phase of his DUI trial, he did

testify during the penalty phase. The appellant stated

       [T]he real truthfulness in that hasn’t prevailed. The truthfulness was that
       the police knocked me out. I wasn’t aware of the ambulance. I wasn’t
       aware of the DUI wagon. I was handcuffed, knocked out, inside that
       police car. And when they was talking about escape, I woke up in shock.
       . . . [T]his part of my body came out of the car. They tried to get me on
       the escape charges. I didn’t have no idea what was going on, because
       I was knocked out.


       Based upon this evidence, the jury found the appellant guilty of driving on a

revoked license, second offense, and driving under the influence, third offense.



                                        Analysis



       Again, in his sole issue on appeal, the appellant challenges the sufficiency of the

evidence to sustain his conviction for driving under the influence, third offense.

Specifically, the appellant contends that “he had not been drinking and the police

knocked him out.” He also claims that he was not guilty of one of the two prior driving

under the influence offenses used to enhance his conviction to third offense DUI.



       Regarding the evidence necessary to affirm the appellant’s present conviction

for driving under the influence, we conclude that the appellant’s challenge is one of

witness credibility. In essence, the appellant requests that this court trespass upon the

jury’s responsibility to evaluate the credibility of the witnesses and reweigh the evidence

introduced at the trial by reassessing the credibility of the arresting officers and the

appellant. It is not the duty of this court to revisit questions of witness credibility on

appeal, that function being within the province of the trier of fact. See generally State

v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 718-

19 (Tenn. Crim. App. 1993); State v. Matthews, 805 S.W.2d 776, 779



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(Tenn.Crim.App.1990). We decline the appellant’s invitation to overturn his conviction

by making a choice different from that of the jury.



       Moreover, we conclude that the evidence is more than sufficient to support the

jury’s verdict. The elements of driving under the influence are: (1) driving or being in

physical control of a motor vehicle (2) upon a public thoroughfare while (3) under the

influence of an intoxicant or drug. Tenn. Code Ann. § 55-10-401 (1996 Supp.). In this

case, the appellant only challenges the finding that he was under the influence of an

intoxicant at the time of his arrest. The jury heard three prosecuting witnesses testify

that the appellant smelled of alcohol, his eyes were blood shot, his speech was slurred,

his reflex responses were slow, and he was violent and combative to the arresting

officers. We conclude that the evidence in the record before us, viewed in the light most

favorable to the State, amply supports the appellant's conviction for driving under the

influence, third offense. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); Tenn. R. App. P. 13(e). This issue is without merit.



       Finally, the appellant challenges the validity of his 1989 conviction for driving

under the influence contending that he only pled guilty because he was advised by

counsel to do so. Specifically, he contends that “he was not guilty of the 1989 DUI

charge . . . because he had pulled over on the side of the road to sleep and was not

driving.” The appellant’s challenge to the validity of his 1989 conviction amounts to a

collateral attack and is precluded by our supreme court’s holding in McClintock v. State,

732 S.W.2d 268, 272 (Tenn. 1987). This claim is without merit.



       For the reasons stated herein, we find no error of law requiring reversal. The

judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, JUDGE


CONCUR:



__________________________________
JOSEPH M. TIPTON, JUDGE



__________________________________
L. T. LAFFERTY, SENIOR JUDGE




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