                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-13-00175-CR


KYLE SCOTT HUFFMAN                                                  APPELLANT

                                           V.

THE STATE OF TEXAS                                                       STATE


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          FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
                       TRIAL COURT NO. 1276840
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                           MEMORANDUM OPINION1

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                                      Introduction

      In a single issue, Appellant Kyle Scott Huffman challenges the sufficiency

of the evidence to support his conviction for driving while intoxicated (DWI). We

affirm.




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          See Tex. R. App. P. 47.4.
                                       Facts

      Around 4:00 a.m. on March 31, 2012, Arlington Police Officer Jared

Maldonado observed a black BMW traveling with its headlights off. After the

officer activated his emergency lights to make a traffic stop, the car ran a red light

and pulled into the parking lot of a nearby gas station. Appellant exited the car

and walked aggressively back toward the officer. Officer Maldonado smelled the

odor of an alcoholic beverage on Appellant’s breath and noticed that Appellant

slurred his speech, that his eyes were glassy and bloodshot, and that his attitude

was aggressive. In the officer’s opinion, Appellant was intoxicated.

      Officer Maldonado administered the horizontal gaze nystagmus (HGN), the

walk-and-turn, and one-leg-stand field-sobriety tests. Appellant passed the one-

leg-stand test but failed the HGN and the walk-and-turn.

      Appellant admitted to the officer that he had consumed two forty-ounce

alcoholic beverages that evening, and the officer found a thirty-two-ounce

alcoholic beverage lying unopened in Appellant’s driver’s seat. Appellant also

admitted that he had taken medication during the day.

      Officer Maldonado decided to arrest Appellant, placed him in his police

vehicle, and asked him if he would voluntarily submit to a breath or blood test.

Appellant refused and was taken to jail. Officer Maldonado obtained a warrant to

perform a blood test but did not administer a test because nearly four hours had

passed since the arrest, and no blood-draw kit was available.




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      After trial, a jury found Appellant guilty of DWI, and the trial court assessed

punishment at one year in jail, probated for two years, with a $750 fine. In a

single issue on appeal, Appellant contends that the evidence is insufficient to

show that he was intoxicated.

                                Standard of Review

      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. 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).

      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. Jackson, 443 U.S. at 319, 99 S. Ct

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. Art. 38.04; Winfrey, 393 S.W.3d at

768. Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). Instead, we determine whether the necessary inferences are reasonable

based upon the cumulative force of the evidence when viewed in the light most


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favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.

2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Temple, 390 S.W.3d at 360.

                                   Discussion

      A person commits DWI if he is intoxicated while operating a motor vehicle

in a public place. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2013).

Intoxicated is not having the normal use of mental or physical faculties by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a

combination of two or more of those substances, or any other substance into the

body. Id. § 49.01(2)(A) (West 2011).

      The arresting officer’s opinion testimony alone is legally sufficient to

support a finding of intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim.

App. [Panel Op.] 1979) (holding that arresting officer’s testimony regarding

observations of defendant’s driving, physical appearance, post-driving behavior,

and officer’s conclusion of intoxication sufficient); Whisenant v. State, 557

S.W.2d 102, 105 (Tex. Crim. App. 1977) (holding same when officer testified that

defendant drove erratically, had strong smell of alcohol on breath, appeared

sleepy, slurred words, and admitted to drinking, and officer concluded defendant

was intoxicated); Zill v. State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st

Dist.] 2011, no pet.).


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      Further, refusal to take a breath test may be considered as evidence of

guilt. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex. Crim. App. 1988) (noting

that “it was not improper to simply argue that appellant refused [testing] because

he was intoxicated”); see also Russell v. State, 290 S.W.3d 387, 397 (Tex.

App.—Beaumont 2009, no pet.) (noting that the jury could have inferred from the

defendant’s refusal to take a breath test that he believed he was intoxicated);

Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet.

ref’d) (holding that a jury may consider refusal to provide breath or blood samples

as evidence of guilt).

      In this case, Officer Maldonado testified that he observed Appellant

operating a vehicle in a public place and that Appellant appeared to be

intoxicated when he exited the vehicle. The record shows that Appellant (1) was

aggressive, (2) smelled of alcohol, (3) spoke with slurred speech, (4) had glassy

and bloodshot eyes, (5) admitted to having consumed alcohol that evening, (6)

had an unopened alcoholic beverage in his possession, (7) failed both the HGN

and walk-and-turn field sobriety tests, and (8) refused both a breath test and a

blood test.

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

it is sufficient to show that Appellant operated a motor vehicle in a public place

while not having the normal use of mental or physical faculties by reason of the

introduction of alcohol into his body. Accordingly, we hold that the evidence is

sufficient to support the verdict, and we overrule Appellant’s sole issue.


                                         5
                               Conclusion

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

judgment.



                                             /s/ Anne Gardner
                                             ANNE GARDNER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

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

DELIVERED: July 24, 2014




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