                           NUMBER 13-11-00398-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

DARRELL GENE OLSOVSKY,                                                         Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                      On appeal from the 24th District Court
                           of Jackson County, Texas.


                           MEMORANDUM OPINION
                 Before Justices Benavides, Vela, and Perkes
                  Memorandum Opinion by Justice Perkes
      Appellant, Darrell Gene Olsovsky, appeals his conviction for felony driving while

intoxicated, a third-degree felony, enhanced at the punishment phase of trial to a

habitual-felony offense by three prior felony convictions. See TEX. PENAL CODE ANN.

§§ 12.42(b), 49.09(b) (West 2011). Following a jury trial, appellant was found guilty, and

the trial court sentenced him to a term of fifty years of confinement in the Texas Department
of Criminal Justice, Institutional Division.1 By one issue, appellant claims the evidence is

insufficient to sustain his conviction because no eyewitness testified to seeing appellant

operate a motor vehicle on a public roadway while intoxicated. We affirm.

                     I.       FACTUAL AND PROCEDURAL BACKGROUND

        On March 26, 2010, Department of Public Safety Trooper Brandon Curlee responded

to single car accident near Edna, Texas. At 8:12 p.m., the police department received a call

concerning the accident. At 8:43 p.m., Trooper Curlee arrived at the accident site and

found a van sitting in a cornfield, registered to appellant with damage to the right front wheel.

Appellant was not at the scene when Trooper Curlee arrived.

        Trooper Curlee inspected the van and detected a strong smell of alcohol. However,

his inspection of the van yielded no alcoholic beverages or containers. The hood of the van


        1
             This fifty year sentence is the result of two statutes elevating appellant’s sentence from the normal
range associated with the offense of driving while intoxicated. Appellant’s sentence results from (1) conviction
of felony driving while intoxicated and (2) being categorized as a habitual felony offender.
          A person commits the offense of felony driving while intoxicated when (1) the party was intoxicated
while driving, and (2) the party has at least two prior convictions for “any other offense related” to driving while
intoxicated. TEX. PENAL CODE ANN. § 49.09(b)(2) (West 2011). Under such circumstances, the party is guilty
of a felony of the third degree. Id. “Any other offense” includes driving while intoxicated, as codified in
section 49.04(a). Id. at § 49.09(c)(1)(A). Therefore, to establish felony driving while intoxicated, the relevant
inquiry is whether the party was driving while intoxicated under the facts before the court and whether the party
has two previous convictions for driving while intoxicated. Id. at § 49.09(b)(2).
          Before trial, appellant pled true to two previous driving while intoxicated convictions in 1980 and
1985. Therefore, appellant did not contest the requisite prior convictions necessary to satisfy the felony
enhancement in Penal Code section 49.09(b)(2). Those two prior convictions, combined with this current
conviction, result in the offense of felony driving while intoxicated, a third-degree felony.
          At the punishment phase of trial, the trial court enhanced that third-degree felony with three previous
felony convictions and categorized appellant as a habitual felony offender. The punishment range for habitual
felony offenders is elevated to twenty-five years to life in prison. Id. § 12.42(d). A habitual felony offender is
one who has committed two previous felonies in addition to the current felony conviction. Id. The two
previous felonies must have occurred at separate times, with the second felony occurring after the conviction
for the first felony was final. Id.
          Before the punishment hearing, appellant pled true to the following five additional convictions: driving
while intoxicated in 1981 and 1992, felony driving while intoxicated in 1984 and 1992, aggravated perjury
(felony) in 1984. The three previous felony convictions in 1984 and 1992, combined with the current
conviction of a third-degree felony, made appellant a habitual felony offender as defined by section 12.42(d).
See id.

                                                         2
was warm to the touch, which Trooper Curlee viewed as an indication that the accident was

relatively recent. Trooper Curlee observed skid marks on the road and tire tracks on the

ground that corresponded to the position of the wrecked van. After learning appellant

owned the van, Trooper Curlee went to appellant’s mother’s house (Evelyn Olsovsky), which

was approximately one-half mile from the accident site.

       Upon arrival at appellant’s mother’s house, Trooper Curlee asked appellant’s mother

if she knew of appellant’s whereabouts. After replying she did not know, she gave Trooper

Curlee permission to search her house. He called for back-up to aid in the search, which

commenced when Edna Police Officers Jeff Tipton and David Merritt arrived. While the

officers were searching the premises, appellant emerged from a white car that was parked in

the driveway, and this was captured on the camera of Trooper Curlee’s police cruiser.

Once outside the car, appellant moved into a shed on the side of the house and later

re-emerged to defecate in the backyard. Officer Tipton noticed appellant’s movement and

called out, at which point appellant pulled up his pants and ran back into the shed. Trooper

Curlee thereafter apprehended appellant.

       During questioning, appellant admitted to being the sole occupant and driver of the

van.   In the presence of two officers, appellant also admitted to consuming alcohol,

specifically whiskey. Appellant stated he had not consumed any alcohol since before the

accident. Trooper Curlee testified that appellant smelled strongly of alcohol, his speech

was “thick-tongued,” and his eyes were “red and glassy.” He administered a field sobriety

test. Appellant failed the “horizontal gaze nystagmus test” and refused to submit to a

one-leg stand and a walk-and-turn test. At 9:24 p.m., Trooper Curlee and appellant arrived


                                             3
at the hospital, where appellant submitted to a blood test. The test revealed a blood alcohol

level of 0.29.

       Delton Spree, a friend of appellant, testified that on the day of the accident, appellant

had been at Spree’s house which is about four miles from the accident site. He testified

that appellant had been drinking and may have been in an intoxicated state. He also

testified, however, that when appellant left his house around 8:00 p.m., appellant was not

intoxicated.

       The jury found appellant guilty of felony driving while intoxicated. Appellant elected

to have the trial court assess punishment. Appellant pled true to his prior convictions. The

trial court sentenced appellant to fifty years in prison. This appeal followed.

                              II.     ANALYSIS AND DISCUSSION

       By one issue, appellant claims the evidence is insufficient to sustain a conviction of

felony driving while intoxicated. Specifically, appellant argues that the State was required

to present eyewitness testimony that he drove while intoxicated. Because the State relied

solely on circumstantial evidence, appellant argues the evidence is insufficient to sustain his

conviction. 2 We disagree.

   A. Standard of Review for Sufficiency

       The analysis in Jackson v. Virginia is the standard used to determine whether

evidence is sufficient to uphold a criminal judgment. See Jackson v. Virginia, 443 U.S. 307,

318–19 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.);

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc). The question

       2
           On appeal, appellant does not contest the requisite prior convictions to satisfy the felony
enhancement in Penal Code Section 49.09(b)(2). See id. § 49.09(b)(2). The only issue presented is whether
the evidence shows he was driving while intoxicated on this occasion.
                                                   4
before the Court is whether, in viewing the facts from the perspective most favorable to the

verdict, a rational jury could have found each required element of the crime beyond a

reasonable doubt. Jackson, 443 U.S. at 319. The reviewing court may not substitute its

own factual findings for those of the jury. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim.

App. 1984). Only the trier of fact has the ability to make judgments of credibility and the

relative strength of evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.

1999). As trier of fact, a jury is free to emphasize or disregard any portion of testimony.

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc). To respect the

jury’s role as fact finder, the reviewing court will assume the jury resolved conflicting

evidence in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App.

1993) (en banc). This assumption dictates that the reviewing court must construe all facts

in favor of the prevailing party, as required by the Jackson v. Virginia standard. McDuff v.

State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (en banc) (citing Jackson, 443 U.S. at

319). This Court will not overturn a verdict due to insufficiency unless the supporting

evidence is irrational or unable to support proof beyond a reasonable doubt. See Matson v.

State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (en banc).

   B. The Elements of Driving While Intoxicated and the Sufficiency of the Evidence

       We measure the sufficiency of the evidence by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a

charge is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof, or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant
                                              5
was tried. Id. 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). A person is intoxicated if that person does not have the normal use of his

mental or physical faculties by reason of the introduction of alcohol, a controlled substance,

a drug, a dangerous drug, a combination of those substances or any other substance into

the body or by having an alcohol concentration above 0.08 or more in his breath, blood, or

urine. Id. at § 49.01(2)(A)–(B) (West 2011).

       The State may rely solely upon circumstantial evidence to establish a conviction for

driving while intoxicated. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

Both direct and circumstantial evidence are probative when establishing guilt, and the

reviewing court draws no distinction between the two on appeal. Id. The evidence, either

direct or circumstantial, must illustrate a “temporal link” between the intoxication and the act

of driving the vehicle. Id. For a question of sufficiency, the issue is whether the evidence

would allow the trier of fact to find, beyond a reasonable doubt, that a temporal link exists.

Scillitani v. State, 343 S.W.3d 914, 917 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).

       In Kuciemba, the driver was convicted of driving while intoxicated following a single

vehicle accident. Kuciemba, 310 S.W.3d at 461. Police found a truck in a roadside ditch,

with damage indicating the truck had rolled over. Id. The driver, still bleeding from minor

head injuries, exited the vehicle as police arrived. Id. A subsequent blood test on blood

drawn at the scene revealed a blood alcohol level of 0.214. Id. There was no direct

evidence that the driver had driven the car while he was intoxicated. Id. The Court of

Criminal Appeals relied on circumstantial evidence to find the evidence sufficient to sustain

the conviction. Id. at 463. Specifically, the Kuciemba Court used the following to support
                                               6
the inference that the driver was intoxicated while driving the truck: (1) the driver was

intoxicated at the scene of the accident; (2) the accident was a single vehicle collision; (3)

the driver did not apply the brakes as the road lacked signs of skid marks; (4) the driver was

seen exiting the truck and was still bleeding, indicating the rollover was recent; and (5) the

driver had a high blood alcohol content, indicating he had been intoxicated for a while. Id.

at 462–63. Based on this circumstantial evidence, the Kuciemba Court found that the trier

of fact could reasonably determine beyond a reasonable doubt that the driver was

intoxicated at the time of the accident. Id. at 463.

       In Scillitani, the driver was involved in a single car accident when he ran off the road

and hit a fence pole. Scillitani, 343 S.W.3d at 915–16. When the police arrived, the driver

admitted to having driven the vehicle at the time of the accident. Id. at 917. After the driver

exhibited signs of intoxication during the field sobriety tests, the officer arrested the driver

and administered two breath tests. Id. at 916. Those tests revealed a breath alcohol

concentration of 0.135 and 0.133, respectively, within two hours of the time law enforcement

was dispatched to the accident scene. Id. Like Kuciemba, the driver had not applied the

brakes, indicating intoxication while driving. Id. at 920.

       As in Kuciemba and Scillitani, appellant’s accident involved one vehicle, which could

indicate driving while intoxicated. Appellant’s van smelled strongly of alcohol, as did the

truck in Kuciemba.       Like the defendant in Scillitani, appellant made incriminating

admissions to the police. Specifically, appellant admitted to being the driver and to not

consuming alcohol since before the accident. Spree testified that appellant consumed

alcohol while at the Spree residence. Additionally, appellant’s blood alcohol level of 0.29,

which is several times the legal limit, was significantly higher than the blood alcohol levels
                                               7
detected in Kuciemba and Scillitani. Appellant’s blood test was taken approximately an

hour and a half after the accident. The high blood alcohol level indicates that appellant was

intoxicated for quite a while. See Kuciemba, 310 S.W.3d at 463.3

        Additionally, appellant left his van on the side of the road, stayed inside a stationary

car when police arrived, and ran away to hide in a shed after police saw him. Appellant’s

actions were circumstantial evidence of guilt and are probative to show a consciousness of

guilt for the offense of driving while intoxicated. See Barlett v. State, 270 S.W.3d 147, 153

(Tex. Crim. App. 2008); see also Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus

Christi 1993, pet. ref'd.) (finding “any conduct on the part of a person accused of a crime

subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be received

as” circumstantial evidence).

        The record contains sufficient evidence to sustain a conviction for felony driving while

intoxicated. Appellant’s issue on appeal is overruled.

                                            III.    CONCLUSION

        We affirm the trial court’s judgment.



                                                             Gregory T. Perkes
                                                             Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of June, 2012.

        3
            This inference for high blood alcohol content is distinguishable from the Court of Criminal Appeals’
analysis in Mata v. State. See Mata v. State, 46 S.W.3d 902, 910 (Tex. Crim. App. 2001). Mata established
the factors necessary to allow an expert witness to testify on retrograde extrapolation (analysis of the alcohol
absorption rate for an individual). State v. Mechler, 153 S.W.3d 435, 438 (Tex. Crim. App. 2005) (citing Mata,
46 S.W.3d at 910). Mata did not address whether evidence of blood alcohol content is admissible in the
absence of testimony on retrograde extrapolation. Mata, 46 S.W.3d at 910.
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