                                MEMORANDUM OPINION
                                        No. 04-10-00354-CR

                                      Sheila Dai DEVILBISS,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006CR7726
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Karen Angelini, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: August 17, 2011

AFFIRMED

           Appellant Sheila Dai Devilbiss appeals her conviction for misdemeanor driving while

intoxicated. Devilbiss contends the evidence is insufficient to support her conviction. We

affirm.

                                             BACKGROUND

           In the early morning hours of November 26, 2005, Devilbiss and Robert Wayne Niznik

were driving home from a family event. As Devilbiss and Niznik approached the entrance to
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their apartment complex, they collided with another vehicle driven by Richard Gabriel Cox. At

approximately 2:23 a.m., San Antonio Police Department Officers Muniz and Kasberg were

dispatched to the accident.

       At trial, Officer Kasberg, a fifteen year veteran, stated that when he arrived, Devilbiss

was upset, crying, sorry, and very remorseful. Although Officer Kasberg admitted he did not see

Devilbiss driving the vehicle, he testified that in response to his general questions about the

accident, Devilbiss offered responses such as, “I didn’t mean to hit him,” and “I was driving fast

coming over the hill.” Officer Kasberg testified Devilbiss never asserted she was the passenger,

and he could not remember anyone else at the scene claiming to be the driver. He also testified

he could not recall speaking to Niznik.

       Officer Kasberg testified Devilbiss had a strong odor of intoxicants on her breath and her

appearance was “disorderly” and “soiled.” Officer Kasberg also testified Devilbiss appeared

sleepy, confused, and had slurred speech.       According to Officer Kasberg, Devilbiss gave

inconsistent answers to repetitive questions.    Devilbiss refused to take a breathalyzer test.

Because of lack of balance, Devilbiss was unable to properly perform any of the field sobriety

tests, other than the horizontal gaze nystagmus (“HGN”) test. As for the HGN test, Officer

Kasberg noted Devilbiss exhibited six of the possible six signs of intoxication.        Devilbiss

admitted to Officer Kasberg that she had consumed four beers, some Captain Morgan’s rum, and

wine with dinner that evening.

       Officer Kasberg arrested Devilbiss. After they arrived at the magistrate’s office, Officer

Kasberg continued to question Devilbiss. Officer Kasberg testified that when he specifically

asked Devilbiss if she was the driver of the vehicle, Devilbiss did not respond verbally, but

shook her head in an affirmative manner. To support Officer Kasberg’s testimony that Devilbiss



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admitted she was the driver of the vehicle, and that she was intoxicated, the State introduced into

evidence a video taken while Officer Kasberg and Devilbiss were in the processing room. The

video, which was admitted into evidence and viewed by the trier of fact, showed Devilbiss

nodding her head affirmatively when Officer Kasberg asked if she was the driver. The video,

which was taken approximately ninety minutes after the accident, also showed Devilbiss

exhibiting signs of intoxication, including slurred speech and an inability to correctly recite the

alphabet.

           The State rested after it presented testimony from Cox, the individual driving the car that

was struck. Cox testified about his injuries, but could not say who was driving the car that struck

his car.

           The defense then presented its case. Niznik, the individual in the vehicle with Devilbiss,

testified at trial for the defense, claiming he was driving the vehicle at the time of the accident,

not Devilbiss. According to Niznik, he convinced Devilbiss to claim she was the driver within

the three or four minutes it took police to arrive after the accident. Niznik stated he later told the

insurance company he was driving. However, Niznik admitted telling Officer Kasberg on the

night of the accident that Devilbiss was the driver. Upon further questioning, he claimed that

what he told the officer that night was a lie.

           Devilbiss then testified, corroborating Niznik’s testimony. Devilbiss stated she first

refused Niznik’s request to tell officers she was driving, but then agreed. Devilbiss claimed she

never admitted she was the driver; rather, she just never denied it. She testified that once she and

Officer Kasberg arrived at the station, she told him she was not the driver. However, the State

introduced evidence of a recorded conversation with an insurance company representative in




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which Devilbiss told the insurance company representative she could not remember what she

told the officer about who was driving.

       Although Devilbiss had been charged with intoxication assault and aggravated assault,

the trial court found Devilbiss guilty of the lesser included offense of driving while intoxicated.

The trial court sentenced Devilbiss to one year community supervision and ordered her to pay an

$800.00 fine. Thereafter, Devilbiss perfected this appeal.

                                             ANALYSIS

       In her sole issue, Devilbiss contends the evidence is insufficient to support her driving

while intoxicated conviction. More specifically, she argues that because her alleged confession

that she was the driver of the vehicle was uncorroborated due to the destruction of the processing

room videotape and the absence of any other corroborating evidence, her conviction must be

overturned.

                                        Standard of Review

       In Texas, there is but one standard for reviewing the sufficiency of the evidence–the legal

sufficiency standard under Jackson v. Virginia. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.

Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson v. Virginia

standard, we must view the evidence in the light most favorable to the verdict to determine

whether a rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Brooks, 393 S.W.3d at 899. This requires us to defer to the trier of fact

determinations of credibility and evidentiary weight. Brooks, 393 S.W.3d at 899. This is

because the trier of fact is the sole judge of a witness’s credibility and the weight to be given to a

witness’s testimony, and as such may believe a witness even though his testimony has been

contradicted and may accept all, none, or part of a witness’s testimony. See id.; Dossett v. State,



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216 S.W.3d 7, 31 (Tex. App.—San Antonio 2006, pet. ref’d) (citing Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986)). As a reviewing court, we may not sit as a “thirteenth juror”

and disagree with a fact finder’s resolution of conflicting evidence and weight determinations.

Id. It is the responsibility of the trier of fact, not the appellate court, to “resolve conflicts in the

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

facts.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S.

at 319).

                                             Application

        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) (West

2003). Devilbiss does not dispute the evidence establishing she was intoxicated or that she was

in a public place when the accident occurred; rather, she argues there is no evidence to establish

she was driving the vehicle at the time of the accident. Devilbiss asserts that although Officer

Kasberg saw her standing next to the vehicle, he did not actually observe her driving the vehicle.

Devilbiss contends her verbal admissions, i.e., statements to Officer Kasberg that she was

“sorry,” “I didn’t mean to hit him,” and “I was driving fast coming over the hill,” are insufficient

because they do not appear in a police report, transcript or video, and are therefore

uncorroborated.

        In a driving while intoxicated case, this court has held that any confession to the offense

must be corroborated. Douthit v. State, 739 S.W.2d 94, 96 (Tex. App.–San Antonio 1987, no

pet.). “The confession of the guilty party alone is not sufficient to support a conviction for the

offense, the confession must be corroborated.” Id. (quoting Watson v. State, 227 S.W.2d 559,




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562 (Tex. Crim. App. 1950)). Accordingly, the State was required to corroborate Devilbiss’s

statements indicating she was the driver. 1

        Devilbiss’s argument that there is no evidence of corroboration centers on the fact that

the video from the processing room was accidently deleted after trial but before appeal,

precluding review of the video by this court. It was in this video that Devilbiss allegedly gave a

non-verbal admission to the fact that she was the driver, nodding her head affirmatively in

response to Officer Kasberg’s question. Devilbiss contends her admissions to Officer Kasberg at

the scene of the accident cannot be corroborated and she therefore cannot be found guilty. It is

undisputed that the video from the processing room, which was admitted into evidence and

viewed more than once by the trial court, was accidentally deleted. The State introduced into

evidence an affidavit from the court reporter averring that she was advised the video had been

inadvertently erased during an attempt to copy it for appellate purposes.

        The record proves the trial court, who was the trier of fact in this case, viewed the

videotape more than once. When the videotape was viewed during trial, it was in connection

with the officer’s testimony about Devilbiss’s “nod” on the video. The officer testified Devilbiss

gave an affirmative nod when he asked if she was the driver. Despite the officer’s testimony

about the video and the fact that the trial court viewed the video, Devilbiss asserts this court’s

inability to view the tape is fatal to her conviction because we are unable to evaluate her actions,

credibility, or demeanor. This, however, is not our role on appeal. See Brooks, 323 S.W.3d at

899; Dossett, 216 S.W.3d at 31 (citing Sharp, 707 S.W.2d at 614). In this case, the trial court

was the sole judge of Devilbiss’s and Officer Kasberg’s credibility and the weight to be given

1
  We note Devilbiss’s assertion that the court’s opinion in Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)
may impact the question of whether the identity of the defendant is part of the corpus delicti of driving while
intoxicated. However, because Officer Kasberg’s testimony was corroborated by the processing room video and
Niznik’s testimony at the trial court, we need not reach this issue.


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their testimony. It was the responsibility of the trial court to weigh the evidence, and to draw

reasonable inferences therefrom. See Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S. at

319).     Given the evidence, we hold the trial court could have believed Devilbiss nodded

affirmatively in response to questions as to whether she was the driver. This was sufficient to

corroborate Devilbiss’s extrajudicial confession that she was the driver on the night of the

accident.

          However, even if we decline to consider the videotape given its absence from the record,

we find there is evidence beyond Devilbiss’s statements from which a rational trier of fact could

have determined beyond a reasonable doubt that Devilbiss was the driver of the vehicle. During

trial, the defense called Niznik as a witness. The following exchange occurred:

          [Defense Counsel]: “And you told the officer that [Devilbiss] was driving?”

          [Niznik]: Yes, sir.

          [Defense Counsel]: Was that the truth?

          [Niznik]: Yes, sir.

          Although Niznik also testified his statement to Officer Kasberg was a lie “to save my

own skin,” the trial court, with the responsibility of determining Niznik’s credibility, could have

believed he was telling the truth when he told Officer Kasberg that Devilbiss was driving, and

that he was lying to the court to help Devilbiss when he claimed he was the driver. As we noted

in the standard of review, the trier of fact may believe a witness even though his testimony has

been contradicted and may accept all, none, or part of a witness’s testimony. See Brooks, 323

S.W.3d at 899; Dossett, 216 S.W.3d at 31 (citing Sharp, 707 S.W.2d at 614). As the reviewing

court, we may not disagree with the trial court’s resolution of conflicting evidence in this case.

See id.



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       We hold Niznik’s testimony was sufficient to corroborate Devilbiss’s statements, which

established she was the driver. Accordingly we overrule her sole issue.

                                        CONCLUSION

       Based on the foregoing, we overrule Devilbiss’s sufficiency challenge and affirm the trial

court’s judgment.



                                                Marialyn Barnard, Justice

Do Not Publish




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