             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00401-CR
     ___________________________

 DWIGHT LESLIE CLIFFORD, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 2
          Denton County, Texas
    Trial Court No. CR-2016-10477-B


Before Sudderth, C.J.; Gabriel and Pittman, JJ.
  Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

      A jury found Appellant Dwight Leslie Clifford guilty of a Class A misdemeanor

count of driving while intoxicated. See Tex. Penal Code Ann. § 49.04(a), (d) (West

Supp. 2018). The trial court adjudicated him guilty; assessed his punishment at 180

days’ confinement and a $750 fine; suspended the jail sentence; and placed him on

community supervision for twenty-two months. See Tex. Code Crim. Proc. Ann. art.

42A.053(a)(2) (West 2018). In a single issue, Appellant contends that his conviction is

not supported by legally sufficient evidence. Because we conclude otherwise, we

affirm.

                                I. BACKGROUND

      Kayla Criswell testified at trial that on September 25, 2016, she went to her

friend Wendy’s residence to visit. At that time, Wendy lived at a house in Flower

Mound that was owned by Crystal, and when Kayla arrived there on the evening of

September 25, Wendy and Crystal were there, as was another of Kayla’s friends

named Cody. Shortly after Kayla arrived, she saw Appellant driving a white Ford

sedan down the road toward Crystal’s house. Kayla saw Appellant pull into Crystal’s

driveway, get out of the Ford sedan, and walk up to Crystal, who was sitting outside

on the patio near her front door. When Appellant got out of his car, Kayla saw him

stumbling and heard him slurring his speech. Kayla also saw that nobody else was in

his car. As Appellant approached Crystal, she began yelling at him, there was a

scuffle, and then Crystal went inside her house.

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       At that point, Kayla walked to the front door and encountered Appellant. As

she got close to him, she could smell alcohol on him. Kayla said that Crystal had told

both her and Wendy that she did not want Appellant at her house. Kayla blocked the

front door and asked him to leave, but he tried to push past her in an attempt to enter

Crystal’s house. Kayla called 911 to report the incident, and as she was on the phone,

Appellant walked back to his car, grabbed a small duffle bag from inside, and came

back to the front door. Kayla assumed Appellant was attempting to stay the night at

Crystal’s house, and he kept trying to push past her to get inside the house. A police

officer arrived shortly after.

       When the prosecutor asked Kayla whether she saw Appellant sitting in the

courtroom, Kayla did not identify him but rather replied that the first time she had

ever seen Appellant was the night of the incident and that she had not seen him since.

The prosecutor followed up by asking Kayla if she was able to recognize Appellant in

the courtroom, and Kayla replied, “I believe so,” though she did not point him out.

When the prosecutor asked Kayla why she was uncertain as to whether Appellant was

in the courtroom, Kayla reiterated that she had never seen him before the

September 25 incident or after it. However, she added that she knew of Appellant

because Wendy lived at Crystal’s house, and when Appellant arrived at Crystal’s

house, Wendy told her that he was Crystal’s boyfriend. Kayla also testified that she

never lost sight of Appellant after he pulled into Crystal’s driveway.



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       Officer David Borel of the Flower Mound police department also testified at

trial. Officer Borel stated that on September 25, 2016, he responded to a call of an

intoxicated person at Crystal’s house. He said that when he arrived, he saw Kayla

standing in the doorway of Crystal’s house and saw an intoxicated male standing on

the porch. Officer Borel stated that the intoxicated man who was standing on the

porch was Appellant and that he had identified him through his Texas driver’s license.

When asked to identify the intoxicated man whom he had encountered on the porch,

Officer Borel identified Appellant.

       Officer Borel testified that Kayla informed him that Appellant had arrived in

the white Ford sedan that was still in the driveway. In performing his investigation,

Officer Borel concluded that Appellant was highly intoxicated—he had a strong odor

of alcoholic beverage on his breath; had red, bloodshot, and watery eyes; slurred his

speech; and stumbled as he walked. Officer Borel further stated that Kayla had told

him that she had seen Appellant operating a motor vehicle on the residential street in

front of Crystal’s house, pulling into the driveway, and getting out of the vehicle, and

that she reported that Appellant was the sole occupant of that vehicle. Officer Borel

testified that the residential street in front of Crystal’s house is a public place. Officer

Borel reported that Appellant refused to perform field sobriety tests. Based on his

observations of Appellant, Officer Borel believed he was heavily intoxicated from the

introduction of alcohol into his system, so Officer Borel arrested him for driving



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while intoxicated. Officer Borel stated he had determined that Appellant was driving

the white Ford sedan based on Kayla’s report that she had seen him driving it.

      Officer Borel requested that Appellant provide a specimen of his breath or

blood, but he refused.      So Officer Borel transported Appellant to the police

department, obtained a search warrant to collect a specimen of his blood, transported

him to the hospital, and had a nurse draw a blood specimen. The parties stipulated

before the jury that a forensic analysis of the specimen showed an alcohol

concentration of .220 grams of alcohol per 100 milliliters of blood.

      Officer Randy Posey of the Flower Mound police department also testified.

He stated that he responded to Crystal’s house on September 25, 2016, for a call that

an intoxicated person had arrived at her residence. Officer Posey stated that the

residential street in front of Crystal’s house is a public place. When he arrived,

Officer Posey encountered the intoxicated man and conducted a quick interview of

him. During that short interaction, Officer Posey noticed that the man was unsteady

on his feet and that his eyes were bloodshot. Like Officer Borel, Officer Posey

identified Appellant in the courtroom as the intoxicated man he had encountered at

Crystal’s house on September 25, 2016. Officer Posey testified that after his short

interview with Appellant, Officer Borel took over the investigation of Appellant, so

Officer Posey then went to interview Kayla and Crystal.




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    II. LEGALLY SUFFICIENT EVIDENCE SUPPORTS THE JURY’S
                          VERDICT

      Appellant contends that the evidence is legally insufficient to support his

conviction for the charged offense.

                                 A. APPLICABLE LAW

      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). The jury was instructed that “intoxicated” meant “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 .08 or higher.” See id. § 49.01(2). And

while that offense generally is a Class B misdemeanor, it escalates to a Class A

misdemeanor if the evidence at trial shows that an analysis of a specimen of the

defendant’s blood, breath, or urine showed an alcohol concentration level of 0.15 or

more at the time the analysis was performed. See id. § 49.04(b), (d).

                              B. STANDARD OF REVIEW

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316 (1979); see

U.S. Const. amend. XIV. In our due-process evidentiary-sufficiency review, we view

all the evidence in the light most favorable to the verdict to determine whether any

rational factfinder could have found the crime’s essential elements beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d 616, 622 (Tex.


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Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

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

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Queeman,

520 S.W.3d at 622.

                                    C. ANALYSIS

      Appellant contends that his conviction is not supported by legally sufficient

evidence specifically because the State failed to prove that he operated the white Ford

sedan in a public place. He acknowledges that during her testimony, Kayla referred to

him by name as the driver and sole occupant of the white Ford sedan. He argues,

however, that her testimony is insufficient to show that he operated the car in a public

place because she was unable to identify him as the driver in court. And he asserts

that no other evidence admitted at trial showed that he drove the white Ford sedan in

a public place while intoxicated. We conclude that although Kayla did not identify

Appellant in the courtroom as the person who had driven the white Ford on the

public road before pulling into Crystal’s driveway, there was other evidence that

supported the jury’s finding that Appellant was the person who committed the

offense. See Oliver v. State, 613 S.W.2d 270, 274 (Tex. Crim. App. 1981) (op. on reh’g)

(“Evidence as to the identity of [the accused] may be proven by direct or

circumstantial evidence.”). Any failure of a witness to identify Appellant at trial goes

to the weight and credibility of the witness and was before the jury for its

consideration. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).

                                           7
       Given the evidence we set forth above, a rational factfinder could have

concluded that Appellant was the person whom Kayla saw driving the white Ford

sedan on the street in front of Crystal’s house because she identified the intoxicated

man on the porch as such to Officer Borel when he arrived on scene, Officer Borel

identified the intoxicated man as Appellant by his driver’s license, and Officer Borel

identified Appellant in the courtroom.1 And given Officer Borel’s and Officer Posey’s

testimony that the residential street in front of Crystal’s house was a public place, and

the parties’ stipulation that an analysis of the specimen of Appellant’s blood showed a

blood alcohol concentration of 0.220, a rational factfinder could have concluded both

that Appellant operated a motor vehicle in a public place while intoxicated and that an

analysis of a specimen of his blood showed an alcohol concentration level of 0.15 or

more at the time the analysis was performed. See Tex. Penal Code Ann. §§ 49.01(2),

49.04(a), (d).

       Viewing all of the evidence in the light most favorable to the verdict, we hold

that legally sufficient evidence supports the jury’s verdict finding Appellant guilty of

the charged offense. We therefore overrule his sole issue.

       It appears that Appellant contends the trial court sustained an objection to
       1

Officer Borel’s testimony that Kayla told him that Appellant drove the white Ford
sedan on the residential road leading to Crystal’s house and instructed the jury to
disregard that testimony. That is not so. While Appellant objected to a portion of
Officer Borel’s testimony in which he testified that Kayla, Wendy, and Crystal had all
told him that Appellant was driving on the street, Officer Borel had also stated earlier,
without objection, that after he arrived on scene, Kayla told him that Appellant had
been driving the car.


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                                 III. CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

Tex. R. App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   Lee Gabriel
                                                   Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 13, 2018




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