                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   §
 ALEJANDRO GARCIA,                                                 No. 08-08-00322-CR
                                                   §
                         Appellant,                                     Appeal from
                                                   §
 v.                                                                 384th District Court
                                                   §
 THE STATE OF TEXAS,                                             of El Paso County, Texas
                                                   §
                         Appellee.                                 (TC # 20080D03392)
                                                   §

                                            OPINION

        Alejandro Garcia appeals his conviction of felony driving while intoxicated. A jury found

Appellant guilty and assessed his punishment at imprisonment for ten years. We affirm.

                                      FACTUAL SUMMARY

        Shortly after midnight on June 8, 2008, El Paso Police Officer Jose Medina observed a

vehicle driven by Appellant coming through an alley with the headlights off. Medina became

suspicious and decided to follow the vehicle as it pulled out onto the street. Appellant initially drove

the vehicle over the center line which placed him in the lane with oncoming traffic. As he continued

down the street, Appellant’s vehicle straddled the lanes and swerved between the right and left lanes

three times without any signal. Medina suspected Appellant was intoxicated but he pulled alongside

the vehicle to determine if Appellant were distracted by “fiddling around” with a cell phone.

Appellant was not on the phone and Medina noticed he was also driving without a seat belt.

Consequently, Medina decided to conduct a traffic stop. When Medina approached the driver’s

door, he saw that the window was missing and there was broken glass on Appellant’s lap, the seat,

and the floor of the vehicle. Appellant denied that he had been drinking but Medina could smell an
odor of alcohol on Appellant’s breath and he also had bloodshot eyes and slurred speech. In

Medina’s opinion, Appellant was intoxicated as he did not have the normal use of his physical and

mental faculties. Medina based his opinion on his training and experience in conducting other DWI

investigations and on his observation of Appellant for approximately thirty minutes. Because he

believed Appellant was intoxicated and should not be operating a vehicle, Medina called for a DWI

unit. Medina did not continue to investigate the case personally because he was on “directed patrol”

which required him to be immediately available to assist other officers who were working in plain

clothes. Medina left after speaking with Officer Jesus Payan about his stop of Appellant.

       The State introduced a videotape made by Payan at the scene. The videotape did not record

sound due to a defect but Payan narrated the video while the jury watched. Like Medina, Payan

noticed that Appellant had bloodshot eyes. At the beginning of his part of the investigation, Payan

advised Appellant of his Miranda rights and Appellant waived his rights. Payan performed the

horizontal gaze nystagmus test and observed that Appellant exhibited jerkiness of his eyes consistent

with intoxication. Payan next had Appellant perform the walk-and-turn field sobriety test. Appellant

exhibited three of eight possible clues present when a person is intoxicated. Payan also had

Appellant perform the one leg stand test. Appellant did not perform the test successfully and had

to raise his arms and place his foot on the ground when he lost his balance. He did not tell Payan

about any medical conditions which would have prevented him from being able to perform the test.

Based on his observations and Appellant’s performance of the field sobriety tests, Payan concluded

Appellant was intoxicated. Payan advised Appellant he was under arrest for driving while

intoxicated and read his Miranda rights to him. Although Appellant had been calm during the initial

part of the investigation, he became belligerent and verbally abusive when Payan told him he was

under arrest. Payan also read the statutory warning to Appellant and requested that he submit to a
breath test, but Appellant refused.

       During cross-examination, Payan testified that Appellant did not appear to be swaying at the

beginning of the video or during the one-leg stand test. Payan reiterated, however, that Appellant

had been unable to perform the one-leg stand test without losing his balance and had put his foot

down multiple times in order to maintain his balance. The indictment alleged that Appellant lacked

the normal use of his mental and physical faculties by reason of introduction of alcohol into his body.

The jury found Appellant guilty of driving while intoxicated as alleged in the indictment.

                                      FACTUAL SUFFICIENCY

       In his sole point of error, Appellant challenges the factual sufficiency of the evidence

supporting his conviction. In reviewing factual sufficiency of the evidence to support a conviction,

we are to view all the evidence in a neutral light, favoring neither party. Berry v. State, 233 S.W.3d

847, 854 (Tex.Crim.App. 2007); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In

performing our review, we are to give due deference to the fact finder’s determinations. See

Johnson, 23 S.W.3d at 8-9. There are two ways in which the evidence may be factually insufficient.

The first is that the evidence supporting the verdict, though legally sufficient, is so weak as to be

clearly wrong and manifestly unjust. Berry, 233 S.W.3d at 854; Lancon v. State, 253 S.W.3d 699,

705 (Tex.Crim.App. 2008); Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). A

clearly wrong and unjust verdict occurs where the jury’s finding is manifestly unjust, shocks the

conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854; Sells v. State, 121 S.W.3d 748,

754 (Tex.Crim.App. 2003). The second is that, when considering conflicting evidence, the jury’s

verdict is against the great weight and preponderance of the evidence. Lancon, 253 S.W.3d at 705.

Thus, the question we must consider in conducting a factual sufficiency review is whether a neutral

review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is
so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of

guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23

S.W.3d at 11.

       Under the first part of this standard, we cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted

to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006).

Under the second part, we cannot declare that a conflict in the evidence justifies a new trial simply

because we disagree with the jury’s resolution of that conflict. Id. Before finding that the evidence

is factually insufficient to support a verdict under the second part of the standard, we must be able

to say, with some objective basis in the record, that the great weight and preponderance of the

evidence contradicts the jury’s verdict. Id.

       The State was required to prove that Appellant operated a motor vehicle in a public place

while intoxicated and he had two prior DWI convictions. TEX .PEN .CODE ANN . §§ 49.04(a) &

49.09(b)(2)(Vernon 2003 & Vernon Supp. 2009). Appellant restricts his factually sufficiency

challenge to the intoxication element. For purposes of this case, “intoxicated” means not having the

normal use of mental or physical faculties by reason of the introduction of alcohol into the body. See

TEX .PEN .CODE ANN . §49.01(2)(A)(Vernon 2003).

       Appellant first contends that the evidence supporting his conviction is so weak that the jury’s

conclusion is clearly wrong and manifestly unjust. His argument focuses exclusively on the video,

but we must consider all of the evidence in our review. Officer Medina testified Appellant operated

his vehicle without headlights and drove on the wrong side of the street. He also drove erratically

by swerving from one lane to another. Medina also observed that Appellant exhibited signs that he

had been drinking, including the odor of an alcoholic beverage on his breath and bloodshot eyes.
Appellant also had slurred speech. Further, Medina offered his opinion that Appellant was

intoxicated because he did not have the normal use of his mental and physical faculties. Officer

Payan observed that Appellant exhibited signs of intoxication during the HGN test and the field

sobriety tests. The videotape supports Payan’s testimony regarding Appellant’s loss of balance and

other signs of intoxication shown by the field sobriety tests. Payan agreed with Medina that

Appellant was intoxicated. Additionally, the jury could infer guilt from Appellant’s refusal to submit

a breath sample. See TEX .TRANSP .CODE ANN . §724.061 (Vernon 1999)(authorizing admission of

evidence that a person refused a request by an officer to submit to the taking of a breath or blood

sample); Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer guilt from

a defendant’s refusal to take a breath test); Burkett v. State, 179 S.W.3d 18, 26-27 (Tex.App.--San

Antonio 2005, no pet.)(defendant’s refusal to take the intoxilyzer test implies he believed he would

fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt). From

all of this evidence, the jury could have concluded that Appellant had lost the normal use of his

mental and physical faculties due to the introduction of alcohol into his body. The jury’s verdict is

not manifestly unjust as it does not shock the conscience or indicate bias. We therefore conclude

it is factually sufficient. See Burkett, 179 S.W.3d at 26-27 (evidence was factually sufficient to find

that defendant was intoxicated, as required to support DWI where three police officers smelled a

strong odor of alcohol on defendant’s breath, defendant exhibited six clues on the horizontal gaze

nystagmus (HGN) test, defendant verified that he had not suffered any head injuries that could have

affected the reliability of the HGN test and that none of his physical impairments would have

affected its accuracy, defendant was unable to follow simple instructions, and defendant refused to

provide the police a specimen of his breath or a sample of his blood to determine his blood alcohol

content).
         Appellant additionally argues that the videotape contradicts the two officers’ testimony

because it reflects Appellant did not sway, stumble, or misstep. We keep in mind that it was the

jury’s task to review the video and draw its own conclusions about what it depicted. Further, we

must give appropriate deference to the inferences drawn by the jury and are not permitted to

substitute our view of the evidence. As Appellant notes, there are portions of the video in which it

can be seen that Appellant is not swaying, but the video also shows that Appellant lost his balance

during the one-leg stand test and the walk-and-turn test. Thus, the videotape works both in favor of

Appellant and against him. As already detailed, the State introduced evidence showing Appellant

drove while intoxicated. We are unable to conclude that the great weight of the evidence contradicts

the jury’s verdict. See Burkett, 179 S.W.3d at 26-27 (evidence factually sufficient despite testimony

from defendant’s medical doctor regarding illnesses which sometimes caused defendant to have the

appearance of being intoxicated when he was not; defendant’s illness did not explain why he had the

odor of an alcoholic beverage on his breath nor would it cause him to exhibit signs of intoxication

during HGN test). We overrule Appellant’s sole point of error and affirm the judgment of the trial

court.


July 30, 2010
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
