                                MEMORANDUM OPINION
                                       No. 04-09-00478-CR

                                        Elizabeth GARZA,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No 4, Bexar County, Texas
                                     Trial Court No. 956959
                       Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: May 12, 2010

AFFIRMED

           Appellant Elizabeth Garza was charged with the misdemeanor offense of driving while

intoxicated (DWI).       A jury found her guilty of the offense and the trial court assessed

punishment at 180 days confinement in the Bexar County Jail and a $500 fine. Both the fine and

confinement were probated.       Garza appeals her conviction, alleging that the evidence was

factually insufficient to support the DWI conviction. We affirm the judgments of the trial court.
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                                     FACTUAL BACKGROUND

       On February 25, 2006, at approximately 3:00 a.m., San Antonio Police Officer Carlos

Bishop was on duty when he saw an accident involving an eighteen-wheeler and a pick-up truck.

Officer Bishop noted that, when he arrived at the scene, the vehicles were still smoking from the

recent impact. Officer Bishop approached the driver’s side window of the pick-up truck, and

observed Garza behind the wheel. When asked if she was okay, Garza indicated that she was not

injured.

       Officer Bishop observed that Garza appeared “disoriented, kind of confused,” exhibited

slurred speech, bloodshot and glassy eyes, and her clothes were disorderly and “kind of in a

disarray.” Additionally, Garza had “a strong odor of intoxicants on her breath” and informed

Officer Bishop that she had just come from a local bar. In fact, Officer Bishop noted she was

still wearing a wristband consistent with the type nightclubs use with their patrons. Furthermore,

Garza admitted she had been drinking that evening. After conducting several field sobriety tests,

Officer Bishop determined that Garza had lost the normal use of her mental and physical

faculties and placed Garza under arrest for DWI.

                                      FACTUAL SUFFICIENCY

       In her sole issue on appeal, Garza argues the evidence was factually insufficient to

support her conviction. Garza’s father testified that Garza suffered a fractured jaw and produced

pictures, taken the day after the accident, showing visible bruising and swelling.          More

specifically, Garza argues her disorientation and behavior are more consistent with the injuries

she sustained as a result of the accident than with intoxication.




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A. Standard of Review

       When considering a factual sufficiency challenge, an appellate court looks at the

evidence in a neutral light giving almost complete deference to the jury’s determinations of

credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if

the evidence supporting the verdict is so weak that the verdict seems clearly wrong and

manifestly unjust or if the evidence supporting the verdict is outweighed by the great weight and

preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.

App. 2006).

B. Driving While Intoxicated

       To support a DWI conviction, the evidence must show that Garza drove a motor vehicle

while intoxicated on a public road, street, highway, or alley. TEX. PENAL CODE ANN. § 49.04

(Vernon 2003). Intoxicated means: “(A) not having the normal use of mental or physical

faculties by reason of the introduction of alcohol, . . . or any other substance into the body; or (B)

having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(A), (B). A person’s failure to

have the normal use of her mental or physical faculties may be proven by circumstantial

evidence. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App. 1973).

C. Evidence of Intoxication

       1. Visual Indicators of Intoxication

       Officer Bishop testified that when he approached Garza’s vehicle, she appeared

disoriented and confused, stumbled when she exited the vehicle, leaned against her vehicle for

balance, exhibited slurred speech, had red, glassy eyes, smelled strongly of intoxicants, and was

extraordinarily emotional and talkative. Based on his observations, Officer Bishop administered

several field sobriety tests on Garza. See Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim.




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App. 1985) (enumerating a nonexclusive list of signs recognized as evidence of intoxication,

including odor of alcohol on person or breath, drowsiness, unsteady balance, staggered gait,

slurred speech, and bloodshot eyes). More specifically, Officer Bishop administered the: (1)

walk-and-turn test where Garza exhibited possible clues of intoxication including an inability to

maintain balance, failure to touch heel-to-toe, raising her arms for balance, turning incorrectly,

and beginning before instructed; (2) the one-leg stand test where Garza swayed, used her arms

for balance, hopped, and put her foot down; and (3) the Romberg balance test where Garza

exhibited a circular sway and kept opening her eyes even when instructed to keep them closed.

       2. HGN Test

       Garza argues that her performance on the HGN test should not be considered for

purposes of factual sufficiency because the officer failed to take into consideration the possibility

of a head injury due to her injuries sustained during the accident. The jury, however, heard

Officer Bishop’s qualifications and experience administering the test and his testimony that when

he administered the HGN test on Garza that she revealed several clues to indicate intoxication,

including lack of smooth pursuit and involuntary jerking of both eyes during two different tests.

       3. Refusal to Provide Breath Specimen

       After being read the statutory warnings, Garza agreed to provide a breath specimen. Yet,

when the operator instructed Garza to “blow into the machine,” Garza failed to do so; and after

several attempts, Garza ultimately refused to give a breath specimen. “A person’s refusal of a

request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal

was express or the result of an intentional failure to give the specimen, may be introduced into

evidence at the person’s trial.” TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999).




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       Garza argues that her “refusal” to provide a breath specimen was not a refusal, but

instead a physical inability due to her broken jaw. According to Garza, the fact that she had a

fractured jaw from the accident is evidence of her inability to perform the test, not a refusal.

Importantly, however, Officer Bishop testified that on the evening in question, Garza did not

complain of injuries or that she was experiencing pain in her jaw.

       4. Admission of Alcohol Consumption

       Other evidence of intoxication included Garza’s admission that she had been drinking at

a local bar called Planeta Bar Rio. Officer Bishop testified that Garza acknowledged that she

had been drinking, but that “she did not feel intoxicated.” During trial, Garza’s father testified

that when he arrived at the scene of the accident, he also smelled alcohol on her breath and, at

the time, did not believe Garza required medical services before being booked into the county

jail. Garza’s father further testified that Garza acknowledged drinking at least three drinks that

evening. Furthermore, the defense offered Garza’s medical records from University Hospital

which provided that Garza told the nurse that: she “hit a pole with her truck,” she did “not

remember the accident at all,” did not know if she had passed out, “she had been at a club with

friends drinking,” and “she had three hard liquor drinks.”

       There is no question that Garza suffered injuries as a result of the accident and, during

her case in chief, she presented evidence regarding the extent of these injuries. Foremost, the

Adult Detention Center refused to accept Garza for booking and instead transferred her to the

hospital. At the hospital, the physician noted a potential head injury and instructed Garza to

follow-up with her personal physician. Finally, Garza’s personal doctor diagnosed a broken jaw

and her father offered pictures showing the extensive bruising and swelling on her face.




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       Based on the record before us, however, we cannot agree that the evidence is so weak

that the verdict is clearly wrong and manifestly unjust. Watson, 204 S.W.3d at 414-15. The

testimony of Officer Bishop, outlined above, regarding his opinion that Garza was intoxicated is

sufficient to establish intoxication. See Little v. State, 853 S.W.2d 179, 183 (Tex. App.—Corpus

Christi 1993, no pet.).     Given this evidence, we conclude that the evidence of Garza’s

intoxication is not so weak as to make the verdict seem clearly wrong or manifestly unjust. See

Mills v. State, 99 S.W.3d 200, 204 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding evidence

factually sufficient when defendant’s breath smelled like alcohol, his eyes were red and glassy,

his posture unsteady, he failed sobriety tests, he personally admitted to drinking, and refused to

give breath sample).

       Likewise, we disagree that the verdict is against the great weight and preponderance of

the evidence. Watson, 204 S.W.3d at 414-15. During trial, Garza’s counsel presented evidence

and extensively cross-examined Officer Bishop regarding Garza’s actions being more consistent

with injuries as opposed to intoxication.      To the extent the evidence could be viewed as

conflicting, an appellate court must give due deference to the jury with regard to issues of

credibility and to weight-of-the-evidence determinations. See Marshall v. State, 210 S.W.3d

618, 625 (Tex. Crim. App. 2006). Although Garza argues that Officer Bishop’s testimony was

so “vague and inconsistent” that it rendered his testimony “entirely without credibility,” the jury

is the “exclusive judge of the credibility of witnesses and of the weight to be given their

testimony.” Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). As such, the jury was

free to believe or disbelieve Officer Bishop’s testimony. Based on the record before us and

considering the evidence cited by Garza, the jury in this case was in the best position to reconcile




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any perceived conflicts and to weigh the evidence, and we give proper deference to those

determinations. See id.

                                          CONCLUSION

       Accordingly, after viewing all of the evidence in a neutral light, we cannot conclude that

the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict

is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414.

Accordingly, the evidence is factually sufficient to support Garza’s conviction and we overrule

Garza’s sole issue on appeal.

                                                 Rebecca Simmons, Justice


DO NOT PUBLISH




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