                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-053-CR


RICKEY LEE DUKES                                             APPELLANT

                                             V.

THE STATE OF TEXAS                                                STATE

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     FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. Introduction

     In two points, Appellant Rickey Lee Dukes appeals his conviction for

driving while intoxicated (“DWI”). We affirm.




     1
         … See T EX. R. A PP. P. 47.4.
                      II. Factual and Procedural History

      On March 11, 2005, Officer E.G. Mekosch of the Fort Worth Police

Department was entering I-35 when he observed a red GMC Suburban

speeding. Appellant was driving the vehicle. Officer Mekosch got behind the

vehicle and paced its speed at approximately 76 mph in a 60 mph zone. Officer

Mekosch turned on his emergency lights to make a traffic stop.

      Appellant acted like he was going to pull over approximately three

different times before he finally exited I-35 and pulled over on a service road.

Immediately, Appellant proceeded to get out of his vehicle and put his hands

in the air. When Officer Mekosch told Appellant to get back in his vehicle, he

did; then he immediately put his hands out of the window.         When Officer

Mekosch asked Appellant for his driver’s license, he noticed that Appellant and

his vehicle compartment smelled of alcohol, that his speech was slurred and

heavy, and that his eyes were bloodshot and watery.

      In response to a question from Officer Mekosch, Appellant admitted to

having two beers earlier in the day. Officer Mekosch asked Appellant if he had

any medical conditions that would prevent him from completing a series of field

sobriety tests. Appellant told him that he took blood pressure medication, but

did not mention anything else. Officer Mekosch determined that Appellant was

capable of performing a series of standardized sobriety tests.



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      First, Officer Mekosch determined that Appellant was a good candidate

for the horizontal gaze nystagmus test. An officer administering this test is

looking for a minimum of four of the six possible clues that indicate someone

is possibly intoxicated. Officer Mekosch proceeded to administer the test and

determined that Appellant exhibited all six clues.

      Second, Officer Mekosch had Appellant perform the “walk-and-turn” test.

An officer administering this test is looking for a minimum of two of the

possible eight clues that indicate that someone is possibly intoxicated. Officer

Mekosch determined that Appellant exhibited seven of the eight possible clues,

including failing to keep his balance while listening to instructions, stopping

while walking in order to keep himself balanced, failing to walk in a heel-to-toe

manner, losing his balance while walking, using his arms for balance, losing his

balance while turning, and taking the wrong number of steps.

      Lastly, Officer Mekosch asked Appellant to perform the one-leg-stand

test. Appellant refused to perform this test.

      Based on everything Officer Mekosch observed, including Appellant’s

initial erratic behavior, the smell of alcohol, Appellant’s slurred speech, and

Appellant’s failure to complete the field sobriety tests, Officer Mekosch

determined that Appellant was intoxicated and placed him under arrest for DWI.

Officer Mekosch then conducted an inventory of Appellant’s vehicle and found



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a twelve-ounce Coors Light under the driver’s seat.       According to Officer

Mekosch, the drink was three-fourths empty and “cool to the touch.”

      Officer Mekosch transported Appellant to the intoxilyzer room of the Fort

Worth Police Department, where the following events were videotaped. First,

Appellant refused to perform any of the physical tests for Officer Bridges 2

because he stated that one of his legs was shorter than the other. Officer

Bridges then had Appellant perform a nonstandardized backward counting test,

which Appellant failed to perform correctly. Finally, Appellant signed a DIC-24 3

form indicating his refusal to submit a breath or blood sample.

      Appellant was charged with DWI, a class b misdemeanor.           Appellant

waived a jury trial. On February 20, 2007, the trial court found Appellant guilty

and sentenced Appellant to ninety days’ confinement in the Tarrant County Jail,

probated for two years, as well as a fine of $600. Appellant now appeals on

the grounds that there was legally and factually insufficient evidence to support

his conviction.



      2
        … Officer Bridges was the officer conducting the interview in the
intoxilyzer room. The briefs and court record do not indicate what physical
tests Officer Bridges asked Appellant to perform. The State’s brief cites the
videotape evidence.
      3
       … DIC-24     Form is the written component of the statutory warning
required in cases   where a peace officer requests a voluntary blood or breath
specimen from a     person. T EX. T RANS. C ODE A NN. § 724.015 (Vernon Supp.
2007); see State    v. Neesly, 239 S.W.3d 780, 782 (Tex. Crim. App. 2007).

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                            III. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

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); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      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; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.



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Crim. App. 2007).      We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the judgment. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly



                                        6
wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997).     We must give due deference to the fact-finder’s

determinations, “particularly those determinations concerning the weight and

credibility of the evidence.” Johnson, 23 S.W.3d at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                        IV. Sufficiency of the Evidence

      The State is required to prove every element of an offense beyond a

reasonable doubt.    T EX. P ENAL C ODE A NN. § 2.01 (Vernon Supp 2008).       A

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

intoxicated while operating a vehicle in a public place. T EX. P ENAL C ODE A NN.

§ 49.04(a) (Vernon Supp. 2008).

A. Legal Sufficiency of Evidence

      Appellant contends that the evidence is legally insufficient to support his

conviction of DWI. Appellant asserts that the only evidence offered by the

State to show that he was intoxicated was Officer Mekosch’s testimony about



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Appellant’s performance on the field sobriety tests at the scene, Appellant’s

performance on the nonstandardized counting test once in custody, and his

subsequent refusal to submit a breath sample for testing. However, when

viewing all the evidence in the light most favorable to the verdict, the record

clearly shows that the evidence was legally sufficient.        See Hooper, 214

S.W.3d at 16-17. In Appellant’s case, as in most DWI cases, no one piece of

evidence overwhelmingly proves his guilt; rather, it is the totality of the

evidence that results in the trial court’s decision to convict. See, e.g., Kimball

v. State, 24 S.W.3d 555, 562 (Tex. App.—Waco 2000, no pet.) (holding that

where defendant contested the State’s proof of intoxication, but the totality of

the evidence corroborated the finding of defendant’s intoxication). In this case,

the record shows that Appellant behaved oddly as he pulled off the freeway by

acting like he was going to pull over approximately three different times before

finally exiting the highway to pull over; that Appellant behaved oddly after he

stopped, as he immediately exited the car with his hands raised; that he

behaved oddly when he got back in the car, as he immediately put his hands

out the window; that Appellant and his vehicle smelled of alcohol; that

Appellant’s speech was slurred and heavy; that Appellant’s eyes were

bloodshot and watery; that Appellant admitted to having drank two beers earlier

that day; that Appellant failed the horizontal gaze nystagmus test; that



                                        8
Appellant failed the walk and turn test; that Appellant refused to perform the

one-leg standing test; that Officer Mekosch formed the opinion that Appellant

was intoxicated at the scene; that Officer Mekosch found a three-quarters

empty beer can that was “cool to the touch” under the driver’s seat; and that

Appellant refused to provide a breath or blood sample.

      Based on this evidence, a rational trier of fact could have found the

essential elements of driving while intoxicated beyond a reasonable doubt. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Therefore, having carefully

reviewed the evidence under the applicable standard, we hold that the evidence

was legally sufficient to support the trial court’s conviction that Appellant was

driving while intoxicated. Id., 99 S. Ct. at 2789. We overrule his first point.

B. Factual Sufficiency of Evidence

      Appellant asserts that the evidence was factually insufficient to support

his conviction. Specifically, Appellant argues that the only evidence supporting

his conviction was Officer Mekosch’s testimony that Appellant failed the field

sobriety test after Appellant was first stopped, that Appellant failed the non-

standardized counting test once in custody, and that Appellant refused to

submit a breath sample for testing.        Appellant attempts to discount this

evidence by arguing that he was unable to perform the one-legged standing test

because he had a physical disability, namely, that one leg was shorter than the



                                       9
other. Appellant further argues that the fact that he failed the counting test is

immaterial because the test is a nonstandardized test that is not recognized by

the National Highway Transportation Safety Administration as a valid indicator

of intoxication and that even if the test was a valid indicator, he did not perform

well on it because he did not understand the instructions. For these reasons,

he argues that the only evidence left as the basis for the trial court’s finding

that Appellant was intoxicated was his refusal to take the breath test, which

Appellant argues will not support a conviction for DWI by itself.

      Contrary to Appellant’s arguments, our review of the record shows that

the evidence that Appellant failed the field sobriety tests and the counting test,

as well as his refusal to submit a breath sample, was not dispositive in the trial

court’s finding that Appellant was intoxicated.      First, Appellant did not tell

Officer Mekosch that he had a physical disability when asked if he had any

medical conditions that would prevent him from completing any of the field

sobriety tests. Second, Officer Mekosch arrested Appellant for DWI prior to

Appellant failing the counting test. Moreover, contrary to Appellant’s argument

that his refusal to submit to a breath sample was the only evidence offered to

support his conviction, the record is replete with evidence that Appellant was

intoxicated. As we previously stated, the record shows that Appellant behaved

oddly as he pulled off the freeway, appearing to stop approximately three



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different times before he finally pulled over; that Appellant behaved oddly after

he was stopped, exiting with his hands raised and then putting his hands out

the window; that both Appellant and his vehicle smelled of alcohol; that

Appellant’s speech was slurred and heavy and his eyes were bloodshot and

watery; that Appellant admitted to drinking two beers earlier that day; that

Appellant failed the horizontal gaze nystagmus test and the walk and turn test;

and that Officer Mekosch found a three-quarters empty beer can that was “cool

to the touch” under the driver’s seat. Moreover, the record shows that Officer

Mekosch formed the opinion that Appellant was intoxicated at the scene,

before Appellant failed the counting test or refused to submit a breath sample.

      Because the record does not clearly reveal that a different result is

appropriate, we hold that the evidence was factually sufficient to support

Appellant’s conviction for DWI. See Johnson, 23 S.W.3d at 8. We overrule

his second point.

                                 V. Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.
                                            PER CURIAM

PANEL F:     MCCOY, DAUPHINOT, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)



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DELIVERED: April 3, 2008




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