                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00175-CR


ROBERT HENDRICKSON                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      A jury convicted Appellant Robert Hendrickson of misdemeanor driving

while intoxicated (DWI) with a breath-alcohol concentration (BAC) above .15. 2

The trial court sentenced him to sixty days’ confinement, probated for twelve

months, and a fine of $600. In two issues, Appellant argues that the trial court


      1
      See Tex. R. App. P. 47.4.
      2
      Tex. Penal Code Ann. § 49.04(d) (West Supp. 2013).
committed constitutional error by denying his motion to suppress and that the

evidence was insufficient to support his conviction. Because the trial court did

not err by denying Appellant’s motion to suppress and the evidence was

sufficient to support his DWI conviction, we affirm the trial court’s judgment.

Summary of the Facts

      On March 26, 2011, at about 2:25 a.m., Officer Justin Crow, a police officer

with the Wichita Falls Police Department, was dispatched to a car wreck

involving a red Jeep and a signpost at the intersection of Maplewood and

Southwest Parkway. At the scene, he encountered Appellant, who admitted that

he had been driving the Jeep and that he had been drinking alcohol earlier.

Officer Crow opined that the collision had just occurred and testified that

Appellant smelled of alcohol and that his eyes were “kind of bloodshot as he was

sitting.” There was no evidence that anyone touched the hood of the car to

determine its temperature. Officer Crow testified that Appellant initially said that

a big, black four-door Ford sedan had cut him off; later Appellant told Officer

Crow that the black car had been a Toyota. Officer Crow attributed the crash to

speed and alcohol.     He denied seeing skid marks.        Officer Crow conceded,

however, that Appellant was polite, complied with all his requests, did not try to

fight the officers, did not fall down or vomit, and did not have slurred speech.

      Officer Tony Ozuna, a Wichita Falls police officer with sixteen years’

experience, was on the scene to perform field sobriety tests.         He overheard

Appellant telling Officer Crow that he had been cut off by another vehicle. Officer


                                          2
Ozuna performed the various field sobriety tests, recording them with his in-car

video, and concluded that Appellant was intoxicated.

      Appellant was transported to the Wichita County jail, where his DIC-24

statutory warnings were read aloud to him. 3          DPS Trooper John Horton

administered the Intoxilyzer test to Appellant. The trial court admitted a video

recording taken of Appellant during this period of time, and the jury viewed it.

Trooper Horton testified that in his opinion, Appellant was intoxicated when

Horton saw him in the county jail. But Officer Ozuna conceded that the video

reflected that Appellant did not noticeably sway.         Additionally, Officer Ozuna

testified that Appellant did not stumble or fall in the Intoxilyzer room and did not

vomit or urinate on himself.

      Two breath samples were taken from Appellant, the first at 3:42 a.m. and

the second at 3:45 a.m.        (The State notes that the time reflected on the

Intoxilyzer video is off by one hour.) The test results show BACs of .189 and

.194, respectively.   The trial court also admitted the following testimony on

extrapolation that the State offered without objection:

      Q.     And keeping that in mind, if you learned that an individual had
             a breath alcohol concentration of .189, would it be possible for
             that individual to have a blood alcohol concentration of less
             than .08 a little over an hour before?

      A.     No.


      3
       See Tex. Transp. Code Ann. § 724.015 (West Supp. 2013).



                                         3
Sufficiency of the Evidence

      In his second issue, Appellant argues that the evidence is insufficient to

show that he was operating the vehicle while he was intoxicated. He argues that

evidence that he was intoxicated at some point after the wreck is not evidence

that he was intoxicated while he was driving the vehicle. That is, he argues that

“the State presented no evidence at trial to establish when [his] accident

occurred or when [he] actually drove the vehicle.”

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. 4 This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. 5 The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor. 6


      4
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
      5
      Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
      6
       Winfrey, 393 S.W.3d at 771; Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).



                                         4
      The issue before us, in light of Appellant’s admission that he was the driver

of the Jeep, is whether the State established the necessary nexus between

Appellant’s intoxication and his operating the vehicle. “‘Intoxicated’ means . . . not

having the normal use of [one’s] mental or physical faculties by reason of the

introduction of alcohol, . . . or . . . having an alcohol concentration of 0.08 or

more.” 7

      Officer Crow testified without objection that in his opinion, the wreck had

occurred just before he arrived on the scene. He also testified without objection

that in his opinion, when he arrived on the scene, Appellant was intoxicated. No

alcohol was found at the scene, and Appellant admitted to drinking “a few drinks”

earlier. Officer Ozuna also testified that in his opinion, Appellant was intoxicated

at the scene of the wreck.

      Both Appellant and the State discuss Kuciemba v. State, a 2010 opinion

from the Texas Court of Criminal Appeals. 8 The Kuciemba court stated, “Being

intoxicated at the scene of a traffic accident in which the actor was a driver is

some circumstantial evidence that the actor’s intoxication caused the accident.” 9

The Court noted that a conviction can be supported by circumstantial evidence

alone: “[T]he inference of causation is even stronger when the accident is a one-

      7
       Tex. Penal Code Ann. § 49.01(2) (West 2011).
      8
       310 S.W.3d 460, 462 (Tex. Crim. App. 2010).
      9
       Id.



                                          5
car collision with an inanimate object.” 10 And “a driver’s failure to brake also

provides some evidence that the accident was caused by intoxication.” 11

      In the case before us, the Jeep collided with a signpost, and Officer Crow

observed no skid marks. Appellant’s high BAC at approximately an hour and a

half after the wreck and the absence of any evidence of alcohol at the scene

provide additional support for the jury’s verdict.

      Considering all the evidence, and applying the appropriate standard of

review, we hold the evidence sufficient to support the jury’s DWI verdict. We

overrule Appellant’s second issue.

Denial of Motion to Suppress

      In his first issue, Appellant argues that the fruits of his arrest, including the

BAC results, were inadmissible because the arresting officers had no warrant

and lacked probable cause to believe that he had committed DWI, since no

evidence showed a temporal link between his driving and his intoxication, or a

breach of the peace. A warrantless arrest without probable cause is illegal, and

the lack of probable cause cannot be cured by bolstering the arrest with

evidentiary fruits illegally seized. 12 But the officers testified that Appellant was


      10
         Id.
      11
         Id. at 463 (citations omitted).
      12
         Wilson v. State, 621 S.W.2d 799, 804 (Tex. Crim. App. [Panel Op.]
1981).



                                           6
intoxicated in a public place when they arrested him. Consequently, Appellant

committed the offense of public intoxication in the presence of the officers. 13 It is

well established that “when there is sufficient evidence to support a finding of

probable cause to arrest a person for the offense of public intoxication committed

in the officer’s presence, the arrest is not invalid just because the officer labels

the offense ‘driving while intoxicated.’” 14

      Because the trial court did not err by overruling Appellant’s motion to

suppress, we overrule his first issue.

Conclusion

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgment.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 8, 2014




      13
        See Tex. Penal Code Ann. § 49.02(a) (West 2011).
      14
        Jones v. State, 949 S.W.2d 509, 515–16 (Tex. App.—Fort Worth 1997,
no pet.).


                                               7
