AFFIRMED; and Opinion Filed June 25, 2015.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-01001-CR

                                  JOCELYN UY, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                        On Appeal from the County Court at Law No. 4
                                    Collin County, Texas
                            Trial Court Cause No. 004-86182-2013

                              MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Schenck
                                    Opinion by Justice Schenck
       A jury convicted Jocelyn Uy of misdemeanor driving while intoxicated (DWI). The trial

court assessed punishment of ten days’ confinement in jail. Appellant challenges the legal

sufficiency of the evidence supporting the jury’s guilty verdict. We affirm the trial court’s

judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.4.

                                         BACKGROUND

       On July 22, 2013, at approximately 1:00 a.m., Officer Tommy Johnson of the Wylie

Police Department was on patrol when appellant’s driving attracted his attention. He observed

her car vary its speed, weave within its lane, nearly hit a curb, and otherwise exhibit signs that its

driver was intoxicated. Officer Johnson initiated a traffic stop, and when he walked up to her

car, he observed appellant’s bloodshot eyes and the odor of an alcoholic beverage. When Officer
Johnson asked appellant whether she had anything to drink, she answered that she had consumed

one whiskey and soda earlier that night. Officer Johnson proceeded with a DWI investigation,

beginning with field-sobriety tests, all of which appellant failed. He then asked if she would

agree to use the portable breath testing machine; she refused. She instead insisted that he

administer additional tests, which she also failed.

       Officer Johnson placed appellant under arrest and took her to the police station where he

recorded appellant reading a statutory warning aloud. The warning instructed appellant that if

she refused to agree to provide a specimen of her breath or blood, the refusal could be admissible

in a subsequent prosecution and her driver’s license would be suspended for not less than 180

days whether or not she was subsequently prosecuted. After appellant refused to provide a

specimen, Officer Johnson obtained a search warrant to test her blood. Appellant’s blood was

drawn at 2:30 a.m. and, upon testing, was discovered to have 0.089 grams of alcohol per 100

milliliters of blood. The forensic scientist who tested her blood estimated that based on her

gender, weight, an estimated time of her last drink at 12:30 a.m., and a blood sample taken at

2:30 a.m., appellant would have had a blood-alcohol concentration of 0.11 at 1:00 a.m.

                                   STANDARD OF REVIEW

       When conducting a legal-sufficiency review, a court must ask whether any rational trier

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

v. Virginia, 443 U.S. 307, 318-19 (1979). In so doing, we assess the evidence in the light most

favorable to the prosecution. Id. This same standard applies equally to circumstantial and direct

evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001). After giving proper

deference to the factfinder’s role, we will uphold the verdict unless a rational factfinder must

have had reasonable doubt as to an essential element. Narvaiz v. State, 840 S.W.2d 415, 423

(Tex. Crim. App. 1992).


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                                          DISCUSSION

       A person commits the offense of driving while intoxicated if he or she is intoxicated

while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a). The

Texas Penal Code sets out two definitions of “intoxicated.” Id. § 49.01(2). The first definition is

subjective and provides that a person is intoxicated where he or she lacks the normal use of

mental or physical faculties by reason of the introduction of alcohol into the body. Id. The

second, objective, definition sets the standard at an alcohol concentration of 0.08 or more per 100

milliliters of blood. Id. Evidence that would logically raise an inference that the defendant was

intoxicated at the time of driving includes erratic driving, post-driving behavior such as

stumbling, swaying, slurring or mumbling words, inability to perform field-sobriety tests or

follow directions, bloodshot eyes, and any admissions by the defendant concerning what, when,

and how much he or she had been drinking. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim.

App. 2010).

       Focusing on the element of intoxication, appellant complains the evidence supporting her

conviction was legally insufficient. She asserts that the forensic scientist’s estimate of her blood-

alcohol concentration at the time of driving should not be considered for several reasons. First,

she asserts his analysis was incorrectly predicated on the assumption that appellant’s last drink

was at 12:30 a.m. instead of midnight when she testified she left the establishment. Next, she

contends the term retrograde extrapolation was never used by the prosecutor or the forensic

scientist and was never explained to the jury. Finally, appellant asserts the forensic scientist did

not testify regarding his qualifications to offer an opinion as to what her blood-alcohol

concentration would have been when Officer Johnson stopped her, the validity of the scientific

theory underlying his opinion, or the technique applying the theory.




                                                –3–
           Appellant asserts the following also demonstrates the evidence was insufficient to

establish that she was intoxicated while driving.                                 She told Officer Johnson she was not

intoxicated. The record contains no testimony that appellant displayed slurred or slow speech or

that she fumbled for her driver’s license. Although he testified appellant had bloodshot eyes,

Officer Johnson conceded on cross-examination there are multiple causes for bloodshot eyes that

are unrelated to alcohol. He also failed to testify as to the strength of the odor of alcoholic

beverage he observed during the traffic stop. Officer Johnson testified appellant exhibited six

out of a possible six clues on the horizontal gaze nystagmus test, three out of a possible eight

clues on the walk-and-turn test, and three out of four clues on the one-leg-stand test, but the

record contains no evidence of what the term clue means. She urges that one of the field-

sobriety tests she failed, the horizontal gaze nystagmus test, proved only the presence of alcohol,

not legal intoxication. She also points to her husband’s testimony that there may have been a

language barrier between her and the police, implicitly suggesting that her difficulty

understanding English caused her to fail the field-sobriety tests or otherwise appear intoxicated. 1

           We note the record abounds with evidence to support the jury’s verdict. The State

introduced evidence that an hour-and-a-half after she was stopped, appellant’s blood-alcohol

concentration was 0.089, above the legal limit of 0.08. Despite her complaints regarding the

forensic scientist’s qualifications, appellant concedes the forensic scientist’s testimony was

admitted without objection, thus failing to preserve any issue as to its admissibility. TEX. R. APP.

P. 33.1. She instead limits her arguments to the weight of the testimony. Although not sufficient

by itself to prove intoxication at the time of driving, evidence of a blood-alcohol concentration

above the legal limit less than two hours after the time of driving—even absent expert retrograde

     1
       The testimony in the record reflects appellant moved to the United States from the Philippines in 2009, and her first language is Tagalog.
Her husband testified she learned the basics of the English language in the Philippines, but she has not yet gained proficiency in understanding
others or expressing herself in English.



                                                                     –4–
extrapolation testimony—is highly probative to prove both impairment and per se intoxication.

Kirsch, 306 S.W.3d at 745.

       Officer Johnson’s testimony provided additional evidence to support the jury’s finding

that appellant was intoxicated. Officer Johnson stated he had been with the Wylie Police

Department for three years and had been a part of approximately fifty DWI investigations. He

told the jury he observed appellant driving erratically, which prompted him to stop her. He also

noted that when he approached her, he observed her bloodshot eyes and the odor of an alcoholic

beverage. He testified appellant did not follow the instructions he gave her and failed all of the

field-sobriety tests he administered to her. Thus, the record contains evidence that raises an

inference appellant was intoxicated at the time she was driving. Kirsch, 306 S.W.3d at 745.

Additionally, Officer Johnson affirmatively stated that he believed she was intoxicated while she

was driving.     His testimony as an arresting officer experienced with conducting DWI

investigations, considered in the light most favorable to the prosecution, is sufficient to prove the

element of intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979).

       With regard to any implication that appellant’s difficulty understanding English and not

intoxication caused her to fail the field-sobriety tests, the record contains a video of Officer

Johnson’s administration, instruction, and demonstration of the field-sobriety tests and

appellant’s performance of the field-sobriety tests.      The jurors could judge for themselves

whether her impaired performance appeared to be the product of alcohol or a language barrier.

Zill v. State, 355 S.W.3d 778, 788 (Tex. App.—Houston 2011 [1st Dist.], no pet.).

       We conclude the record contains more than sufficient evidence to support the jury’s

verdict. Accordingly, we overrule appellant’s single issue.




                                                –5–
                                       CONCLUSION

       We affirm the trial court’s judgment.




                                                     /David J. Schenck/
                                                     DAVID J. SCHENCK
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47

141001F.U05




                                               –6–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JOCELYN UY, Appellant                                 On Appeal from the County Court at Law
                                                      No. 4, Collin County, Texas
No. 05-14-01001-CR         V.                         Trial Court Cause No. 004-86182-2013.
                                                      Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee                          Justices Bridges and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 25th day of June, 2015.




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