                                 NO. 07-03-0025-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                    JUNE 2, 2004

                        ______________________________


                     ANTHONY LEON SUMMERS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 128TH DISTRICT COURT OF ORANGE COUNTY;

            NO. A-010013-R; HONORABLE PATRICK A. CLARK, JUDGE

                        _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Appellant Anthony Leon Summers was convicted by a jury of the offense of felony

driving while intoxicated and punishment was assessed by the court at twelve years

confinement. He challenges his conviction by two points of error asserting the evidence
is (1) legally insufficient and (2) factually insufficient to show he was intoxicated at the time

he operated a motor vehicle. We affirm.


       On the morning of April 6, 1999, Robert McNeil, a friend of appellant’s, loaned his

car to appellant so that he could drive to work. At approximately 8:30 p.m., appellant

attempted to pass a car being driven by Debra Gregus while a truck pulling a boat was

approaching in the opposite lane. To avoid a major collision Gregus and the driver of the

truck swerved onto their respective shoulder roads; the boat, however, fishtailed and was

struck by the car appellant was driving. Appellant drove away and pursuant to a request

from the driver of the truck, Gregus followed him to get his license plate number. After

appellant stopped at a tattoo shop, Gregus recorded his license plate number, pulled up

beside his car, and informed him he needed to return to the scene of the accident. Gregus

returned to the scene, but appellant did not.


       The car driven by appellant had sustained a flat tire and enough damage to make

it immobile. While at the tattoo shop he telephoned McNeil to tell him he had been in an

accident and ask for a ride. The owner of the tattoo shop offered appellant a ride to

McNeil’s home where appellant was residing at the time. When McNeil arrived at the tattoo

shop approximately 30 to 60 minutes later, appellant had already left with the shop owner.


       The Department of Public Safety dispatched a trooper to a hit and run scene at 8:43

p.m. and while en route, he located the abandoned car appellant had been driving still

parked at the tattoo shop. He observed fresh damage to the car and upon closer

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inspection discovered full and empty beer bottles inside. He interviewed Gregus, who had

returned to the tattoo shop, and was told she had seen appellant driving the car while

intoxicated. The trooper also interviewed the owner of the tattoo shop who informed him

that he had driven appellant to a particular address. McNeil then arrived at the tattoo shop

and gave a statement to the trooper in which he stated that appellant had been driving his

car. After the interviews the trooper proceeded to the scene to investigate. After securing

the scene, he drove to McNeil’s residence to interview appellant.


       McNeil gave the trooper permission to enter his residence. Upon entry, they

discovered appellant on the telephone in an angry and intoxicated condition. He had

scratches with fresh blood on his face that had not yet scabbed. The trooper searched

garbage cans, the icebox, and other general areas, but found no alcoholic beverages.

After the trooper determined appellant was intoxicated, he arrested him.


       Appellant challenges the legal and factual sufficiency of the evidence to show he

was intoxicated at the time he was driving. We disagree. When both the legal and factual

sufficiency of the evidence are challenged, we must first determine whether the evidence

is legally sufficient to support the verdict.    Clewis v. State, 922 S.W.2d 126, 133

(Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted

of a crime unless it is shown beyond a reasonable doubt that the defendant committed

each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann.

art. 38.03 (Vernon 2000); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting a


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legal sufficiency review, we must determine whether, after viewing the evidence in the light

most favorable to the prosecution, 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, 318,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157

(Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573

(Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth juror, but must

uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum

of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all

the evidence without the prism of “in the light most favorable to the prosecution” and set

aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is

the exclusive province of the jury to determine the credibility of the witnesses and the

weight to be given their testimony, and unless the record demonstrates a different result

is appropriate, we must defer to the jury’s determination. Id. at 8.


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. A

person commits the offense of driving while intoxicated if the person is intoxicated while




                                             4
operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon

Supp. 2004).


       By his brief, appellant concedes he became intoxicated after the accident occurred.

The evidence, however, shows otherwise, and a witness need not be an expert in order

to express an opinion on whether a person is intoxicated. Vaughn v. State, 493 S.W.2d

524, 525 (Tex.Cr.App. 1972). Gregus testified that she followed the car driven by appellant

to the tattoo shop and, after noting his license plate number, pulled up beside his car and

observed that he was intoxicated. She testified he had glassy bloodshot eyes and slurred

speech. When questioned why she believed appellant to be intoxicated, she responded,

“I’ve seen quite a few intoxicated people.”


       The owner of the tattoo shop testified that when he encountered appellant he was

intoxicated. Appellant told the shop owner he had been run off the road and needed help

getting home which he interpreted to mean that appellant was alone and had been driving

the car. He also said appellant was disoriented, had slurred speech, trouble maintaining

his balance, and smelled of alcohol. Based on the testimony presented by Gregus and the

tattoo shop owner, the evidence is sufficient to show that appellant was operating the car

while intoxicated at the time of the accident. Point of error one is overruled.


       Concluding that the evidence is legally sufficient to support the conviction, we must

now determine, after a neutral review of all the evidence, whether it is factually sufficient

to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact

                                              5
finder to determine the credibility of the witnesses and the weight to be given their

testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v.

State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).


       The State established that the car appellant was driving contained full and empty

beer bottles. Additionally, upon his search of McNeil’s residence, the trooper did not find

any evidence that appellant had become intoxicated there. Furthermore, McNeil testified

that based on the telephone conversation with appellant immediately following the

accident, he believed him to be intoxicated. Specifically, he testified:


       A. Oh, yeah, he was intoxicated.
       Q. Why do you say that?
       A. I know Tony.
                                            * * *
       A. Tony kind of gets a little bit loud and, you know, acts kind of silly; and he’s
       probably like everybody else when they get drunk. You know, you act goofy
       and, you know –
       Q. Okay.
       A. – that’s – I just know he was drinking and I know he was drunk and I – I
       just know that.


       Appellant testified in his own defense and denied driving McNeil’s car at the time it

was in the accident. He also claimed his intoxicated-like appearance was the result of

medications. However, the jury, as the exclusive judge of the facts and credibility of the

witnesses, was free to believe or disbelieve the testimony of any witness. Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon Pamph. Supp. 2004); Adelman v. State, 828 S.W.2d 418,

                                               6
421 (Tex.Cr.App. 1992). After a neutral review of all the evidence, we conclude it is

factually sufficient to support appellant’s conviction. Point of error two is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                                  Don H. Reavis
                                                    Justice


Do not publish.




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