Opinion filed September 2, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00154-CR
                                        __________

                         KALE BLAKE HUGHES, Appellant

                                              V.

                             STATE OF TEXAS, Appellee


                             On Appeal from the County Court

                                    Eastland County, Texas

                                  Trial Court Cause No. 06-638


                                         OPINION
       The jury convicted Kale Blake Hughes of a Class B misdemeanor offense of driving
while intoxicated and assessed his punishment at confinement for thirty days in the Eastland
County Jail and a fine of $200. Following the jury’s recommendation, the trial court suspended
the imposition of the sentence and placed appellant on community supervision for six months.
We affirm.
                                         Issues on Appeal
         In two appellate issues, appellant challenges the legal and factual sufficiency of the
evidence to support his conviction. To determine if the evidence is legally sufficient, we must
review all of the evidence in the light most favorable to the verdict and determine 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, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine
if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral
light.   Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part
Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11
(Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997);
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court
determines whether the evidence supporting the verdict is so weak that the verdict is clearly
wrong and manifestly unjust or whether the verdict is against the great weight and preponderance
of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The
jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’
testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
                                       The Evidence at Trial
         Department of Public Safety Trooper Michael Orsini testified at trial. On October 22,
2006, at about 1:43 a.m., he was dispatched to the scene of a possible one-vehicle accident on
FM 2563 in Eastland County. As Trooper Orsini drove east on FM 2563 to the scene, he saw
appellant walking west along the highway. He stopped his patrol car and talked to appellant.
Appellant said that he had gotten his pickup stuck in a ditch when he was attempting to make a
U-turn. Trooper Orsini smelled a strong odor of alcohol coming from appellant, and he activated
the video camera in his patrol car. The State introduced a DVD copy of the video of Trooper
Orsini’s encounter with appellant into evidence and played part of the DVD for the jury. That
part began at 1:52 a.m. when Trooper Orsini activated his camera and ended at 2:02 a.m. when
he placed appellant in handcuffs.       We have viewed the DVD, and it is consistent with
Trooper Orsini’s testimony.
         Trooper Orsini gave appellant a ride back to his pickup, which was located about three-
fourths of a mile away from where he initially saw appellant walking. Appellant’s pickup had

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been wrecked and had sustained extensive damage. Trooper Orsini testified that “the front right
axle was knocked off, up underneath the undercarriage of the vehicle, and [the] driveshaft was
broken.” Appellant had hit a culvert and a ditch, and his vehicle had come to rest on top of the
roadway. After he smelled alcohol on appellant while appellant was in the patrol car and after he
saw the damage to appellant’s vehicle, Trooper Orsini began a DWI investigation.
       Trooper Orsini testified that “[appellant] had real glassy and red bloodshot eyes,” “was
kind of slurring his speech a little bit, [and] mumbling.” Trooper Orsini performed field sobriety
tests on appellant, including an HGN test, a walk-and-turn test, and a one-leg stand test. The
DVD shows that Trooper Orsini started the field sobriety tests at about 1:56 a.m. The HGN test
revealed all six possible clues of intoxication.          Therefore, appellant failed the HGN test.
Appellant also failed the walk-and-turn test. The DVD shows that, during the one-leg stand test,
appellant stated, “I couldn’t do this sober.” During Trooper Orsini’s testimony, appellant’s
counsel stipulated that, when Trooper Orsini performed the sobriety tests, “[appellant] certainly
was more intoxicated than what the law allows.”
       After Trooper Orsini completed the field sobriety tests, he asked appellant about the keys
to his pickup. Appellant had the keys in his pocket, and he gave them to Trooper Orsini.
Trooper Orsini arrested appellant for driving while intoxicated and placed him in handcuffs.
Trooper Orsini placed appellant in his patrol car and then drove appellant to the Eastland County
jail. At the jail, Trooper Orsini conducted an intoxilyzer test on appellant. The test began at
about 2:36 a.m. and was completed at about 2:40 a.m. After the test was completed, Trooper
Orsini gave appellant his Miranda1 warnings and then interviewed him. Appellant said that he
had been operating a vehicle, that he had started his trip from Carbon at 1:45 a.m., and that his
intended destination had been home. Appellant also said that he had consumed six or seven
beers and that he had consumed his last beer at 12:30 a.m. Trooper Orsini testified that, in his
opinion, appellant “was extremely intoxicated” when appellant was in his presence.
       Bob Browder, a forensics chemist with the Department of Public Safety, testified about
the results of the intoxilyzer test. He said that the two breath samples taken from appellant
showed alcohol concentrations of 0.177 and 0.169. Browder testified that, in his opinion, a
person with an alcohol concentration level of 0.177 or 0.169 would have lost the normal use of
his mental or physical faculties for the purpose of operating a motor vehicle.

       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

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                                              Analysis
       A person commits the offense of driving while intoxicated if the person is intoxicated
while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (Vernon
2003). “Intoxicated” is defined as “not having the normal use of mental or physical faculties by
reason of the introduction of alcohol . . . into the body” or “having an alcohol concentration of
0.08 or more.” TEX. PENAL CODE ANN. § 49.01(2)(A)-(B) (Vernon 2003).
       We note that appellant does not challenge the sufficiency of the evidence to establish that
he was driving the pickup when the accident occurred. The evidence supported the conclusion
that he was driving the pickup. He told Trooper Orsini that he was driving the pickup, and he
had the keys to the pickup in his pocket after the accident.
       Appellant concedes in his brief that he was “clearly intoxicated by the time the officer
first encountered him on the highway.” However, he contends that “there [was] no evidence that
he was intoxicated while driving at an earlier time.” Appellant relies on a lack of evidence as to
the time that the accident occurred. He contends that there was no evidence of his condition at
the unknown time of the accident and that, therefore, the evidence was legally and factually
insufficient to support his conviction.
       Proof of the precise time of an accident or of the defendant’s driving is not required to
prove the offense of driving while intoxicated. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.
Crim. App. 2010); Kennemur v. State, 280 S.W.3d 305, 314 n.8 (Tex. App.—Amarillo 2008, pet.
ref’d); Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.).
However, the State must present evidence establishing “a temporal link between the defendant’s
intoxication and his driving.” Kuciemba, 310 S.W.3d at 462. Thus, there must be proof from
which the jury can conclude that, at the time of the driving in question, whenever that may have
been, the defendant was intoxicated. Zavala, 89 S.W.3d at 139. A conviction for driving while
intoxicated can be supported solely by circumstantial evidence. Kuciemba, 310 S.W.3d at 462.
Being intoxicated at the scene of a traffic accident in which the defendant was the driver is some
circumstantial evidence that the defendant’s intoxication caused the accident, and the inference
of causation is even stronger when the accident is a one-car collision with an inanimate object.
Id.
       Appellant told Trooper Orsini that he drank six or seven beers and that he had his last
beer at 12:30 a.m. Appellant did not believe that he left Carbon until 1:45 a.m. Trooper Orsini

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was dispatched to the accident scene at about 1:43 a.m. Based on the evidence, the jury could
have reasonably concluded that appellant drank six or seven beers before the accident; that he
drank his last beer at 12:30 a.m.; that the accident occurred after he drank his last beer; and that
the accident occurred, at the latest, about one hour and fifteen minutes after he drank his last
beer. Trooper Orsini met appellant at 1:52 a.m. and, within a short period of time, determined
that appellant was “extremely intoxicated.” Trooper Orsini performed the intoxilyzer test at the
jail from about 2:36 a.m. until about 2:40 a.m. The intoxilyzer test results showed that appellant
had alcohol concentration levels of 0.177 and 0.169, which more than doubled the legal limit of
0.08. Appellant’s high blood alcohol concentration levels supported an inference “that he had
been intoxicated for quite a while.” Kuciemba, 310 S.W.3d at 463. The evidence was sufficient
to establish a temporal link between appellant’s driving and his intoxication.
         The evidence was legally and factually sufficient to establish that appellant operated his
pickup while intoxicated.2 Appellant’s issues are overruled.
                                                   This Court’s Ruling
         The judgment of the trial court is affirmed.




                                                                               TERRY McCALL
                                                                               JUSTICE
September 2, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




         2
           Appellant relies on Scillitani v. State, 297 S.W.3d 498 (Tex. App.—Houston [14th Dist.] 2009), vacated, No. PD-
0069-10, 2010 WL 2606485 (Tex. Crim. App. June 30, 2010) (per curiam). In Scillitani, the court of appeals held that the
evidence was legally insufficient to support the appellant’s conviction for driving while intoxicated. Id. at 503. Scillitani is
factually distinguishable from this case. In addition, the Court of Criminal Appeals recently vacated the judgment of the court of
appeals in Scillitani and remanded the case to the court of appeals in light of the Court of Criminal Appeals’s opinion in
Kuciemba.

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