   A [FIRM; Opinion issuctl November 27, 2012.




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                            Fi(tI! Jttrit1        tit i’Xdi tt       1a11a3
                                          No. 05—i 1—00497-Ck


                              RANt) ALL CLAYToN IAY, Appellant

                                                    V.

                                 tilE STATE OF TEXAS, Appellec


                          On Appeal from the County Court at Law No. 4
                                      Collin County, Texas
                              Trial Court Cause No 004—8519—09


                                MEMORANDUM OPINION
                         Before Justices O’Neill, l’itzGeraId, and Lang-Miers
                                      Opinion By .1 ustice O’Neill

         A jury convicted appellant Randall Clayton May o misd
                                                               emeanor driving while intoxicated.
 lie was sentenced to one hundred twenty days con hner
                                                       ncnt, probated for five months, with a fine.
On appeal, he argues the evidence is insufficient to supp
                                                          ort his conviction and that the trial court
abused its discretion by admitting an oral offense report.
                                                           We affirm the trial court’s judgment.

                                             Backro nn d

        On May 29, 2009, appellant picked up his friend Mark Cash
                                                                  man in 1)allas and drove to Fort
Worth to attend the Colonial golf tournament. Cashman
                                                      admitted that both men had a couple of

beers before leaving the tournament around 6pm. They ate
                                                         dinner at The Mexican Inn before visiting
a friend’s house. Cashman denied that he or appellant dran
                                                           k any alcohol at dinner or at their friend’s
   house. When appellant drove the two men hack
                                                to l)allas, Cashman said appellant was
                                                                                       not drunk
   and had nut lust the normal use of his mental or
                                                    physical làcullies lioiit consuming alcohol.
          Appellant dropped (‘ashman oft around 9:3
                                                       0 or 9:45 p.m. At approximately 10:21 p.m
                                                                                                      ..
   Agent Jay Odem was patrolling the northb
                                              ound direction of the l)allas North follway
                                                                                            when he
  observed a dark-colored SUV cross the solid
                                                 white line and go onto the shoulder. Age
                                                                                            nt Odem
  activated his emergency lights after he observed
                                                   the SUV cross the solid white line a second
                                                                                                time.
  The SLJV drifted a third time before Agent Ode
                                                 m activated his emergency siren. The driver
                                                                                             still did
  not stop for approximately another mile. The driv
                                                     er finally turned into a Tom Thumb parkin
                                                                                                 g lot
  and stopped. however, the driver turned from the
                                                     wrong lane.
          As Agent Odem approached the vehicle, appella
                                                              nt attempted to get out. Agent Odem told
  him to stay in the vehicle, but he was having trou
                                                     ble getting back into the car. Agent Odem assi
                                                                                                        sted
  him. Agent Odem then asked appellant some
                                                  questions, but Agent Odem said he had jus
                                                                                                 t a blank
 stan.” lie thought appellant wanted to answer but
                                                      could not Appellant provided his driver’s lice
                                                                                                        nse
 but was unable to produce insurance. Appellant’s
                                                     driver’s license did not have any visual restrict
                                                                                                       ions
 listed, nor did he have on glasses or contacts.

         During the encounter, Agent Odem smelled alcoh
                                                             oL coming from appellant’s breath. Agent
 Odem asked appellant to get out of the car
                                                   so he could conduct field sobriety tests.
                                                                                                  Before
 perfonning the horizontal gaze nystagmus test,
                                                  Agent Odem asked appellant ifhe had suff
                                                                                               ered any
 recent head injuries, and appellant said yes. How
                                                     ever, he was unable to articulate the exact
                                                                                                  nature
 ofhis injury or provide any further details. Age
                                                  nt Odem ran a test to determine ifappellan
                                                                                              t, despite
a head injury, was a good candidate for the HON
                                                     test. He confirmed that appellant’s pupils
                                                                                                   were
equal size and that both eyes tracked equally, whi
                                                    ch essentially would rule out a serious bra
                                                                                                in stem
injury Agent Odem determined appellant was
                                                 a good candidate for the HON test



                                                 —2—
           Agent Odem perfonued the lICiN test and appe
                                                              llant exhibited six out of six clues of
  mtoxication. lie also noted that appellant’s eyes
                                                    were red and glassy, he had to be reminded of
                                                                                                  the
  instructions, and he had difficulty keeping his head
                                                       stationary.
          Agent Odem then explained the walk and turn
                                                               test to appellant. lie had to repeat the
  instructions several times, and appellant had difficulty
                                                           figuring out his left and his right foot. Agent
  Odem testified appellant never could get in the prop
                                                        er position for the test. Appellant “just walked
  through it” and exhibited seven out of eight clues
                                                      of intoxication. “As a generalization, he didn’t
  pretty much do anything I asked him to do in refer
                                                      ence to that test.”
        Appellant also performed poorly on the one-leg
                                                        stand test. He swayed, used his arms for
 balance, and put his foot down. Thus, he exhibited
                                                    three out of four clues of intoxication. Agent
 Odem did not have any doubt in his mind appellant
                                                    was intoxicated.
         Agent Odem then asked appellant to submit to a
                                                            blood and breath test but appellant refUsed.
 He arrested appellant for driving while intoxicated,
                                                        He had to explain several times to appellant that
 he was under arrest. Agent Odem then put appellant
                                                    in the front seat      of his .squad car.
        At the time ofappellant’s arrest, Agent Odem had
                                                             a civilian in his car participating in a “ride
along.” William Austin Porter testified he could smel
                                                      l the    strong odor of alcohol coming from the
front seat where appellant was sitting. He also described
                                                          appellant’s speech as sluggish    and “slurring
a little bit” When asked if appellant coherently respo
                                                         nded to questions, he said “some were, some
weren’t” Porter testified that based on his observati
                                                      ons ofappella   nt during the field sobriety tests
and in the car, appellant was drunk.

       Appellant introduced medical records showing
                                                          he had a history ofeye problems that began
in 2003. The records indicated he suffered from macu
                                                     lar     edema in his right eye and had cataracts
in both eyes. He argued these problems would affec
                                                   t his performan    ce on the HGN test He further



                                                -3-
   introduced medical records showing lie
                                            sutkrcd horn “cervical spine problems,
                                                                                     thoracie cpine
   problems, lumbar spine problems, and low
                                              er hack syndrome.” lie argucd these con
                                                                                      ditions would
   afThct his performance on the walk and turn
                                               and one leg stand test
           The jury convicted appellant of driving
                                                      while intoxicated. This appeal followe
                                                                                             d.
                                       Snmclency of the Evidence
          In his lint issue, appellant argues the evid
                                                       ence is insufficient to support his convict
                                                                                                   ion of
  intoxication by mason of alcohol consum
                                              ption because the State did not rationally
                                                                                           account for his
  eye disease and poor vision. The State
                                             responds the evidence was sufficient
                                                                                      to support his
  conviction because the jury was free to
                                          disbelieve his claims that his eye conditi
                                                                                     on affected his
  performance on the I ION test, and we mu
                                           st defer to the jury’s determination. We
                                                                                      agree with the
  State.

         In reviewing the sufficiency of the evidenc
                                                      e, the court considers all the evidence in
                                                                                                the light
 most favorable to the jury’s verdict and
                                           determines whether any rational trier of
                                                                                       fact could have
 found the essential elements ofthe crime
                                           beyond a reasonable doubt. Jackson v.
                                                                                    Virginia, 443 U.S.
 307,319(1979); Brooks v. State, 323 S.W
                                            .3d 893,895 (Tex. Crim. App. 2010).
                                                                                    The trier of fact is
the sole judge of the weight and credibility
                                             given to witness testimony. Cain v. Sta
                                                                                      te, 958 S.W.2d
404,407 (rex. Crim. App. 1997). The
                                         reviewing court may not act as the “thi
                                                                                   rteenth juror” and
reweigh thejury’s determinations ofthe wei
                                             ght or credibility ofthe evidence. William
                                                                                        r v. State, 235
S.W.3d 742,750 (Ta. Crim. App. 2007).

        The standard is the same for both direct
                                                  and circumstantial evidence. Wise v. Sta
                                                                                              te, 364
 S.W.3d 900,903 (l’ex. Crim. App. 201
                                         2). The State need not disprove all reas
                                                                                  onable hypotheses
that are inconsistent with the defendant’
                                          s guilt it!. Rather, a court considers
                                                                                   only whether the
inferences necessary to establish guilt
                                        are reasonable based upon the cumulative
                                                                                     force of all the



                                                -4-
   evidence   ‘.   hen considered in the Iitht most Livotable to
                                                                 the verdict. ld.    c aIs   Ihm/wr   i.   Ia!t.
   213 SW3d         ,   I 2 flex. (rim. App. .100?.

             I he State had the burden ot provirie appellant
                                                                openited a motor vehicle in a public place
   while into.x waled. IEX. PENAL (‘( N )h ANN. sS
                                                    •39.04(a) (West Supp. 201 2). “Intoxicated’
                                                                                                    is defined
   as “not liaviru the normal use of mental or phys
                                                     ical faculties by reason ot the introduction
                                                                                                   of alcohol,
   a controlled substance, a drug. a dangerou
                                               s drug, a combination of two or more of thos
                                                                                                e substances,
  or any other substance into the body.
                                            Tux. PENAL CODE ANN. 491)1 (2)(A
                                                                         §             ) (West 2() I I).
           As a general rule, the testimony of an officer that
                                                                 a person is intoxicated provides suflicient
  evidence to establish the element of’ intox
                                              ication for a DWI offense .5cc lnnis v.
                                                                                          State, 578 S.W.2d
  406. 307 (Tec (‘rim. App. 1979); TuIth v.
                                                  State, 208—400-CR, 2009 WL 3720166, at *2
                                                                                                         (Tex.
  Ai.Iort Worth Nov. 5, 20()9, pet. retd) (mem. op.,
                                                              not designated bar publication). In addition,
 evidence of intoxication may be proven by a
                                                   combination of individual symptoms
                                                                                             of intoxication
 that when taken individually do not necessarily
                                                     prove intoxication. Id. The jury may
                                                                                              also consider
 video of’ a defendant’s performance on held—so
                                                     briety tests as direct evidence of intoxication.
                                                                                                          See,
 e.g., Pose/ia/I v. State, 285 S.W.3d 166, 177
                                                  (Tex. App.—Fort Worth 2009, pet. retd).

         Appellant argues we should ignore these gene
                                                        ral rules because appellant’s medical records
explain his performance on the sobriety tests
                                                , and Agent Oden reftised to conduct an
                                                                                            objective
investigation. Further, he alleges his nystagmus
                                                   was likely caused by titigue from walking
                                                                                              around
all day in the heat, not drinking enough water,
                                                 and eating a heavy Mexican meal.

        Appellant’s arguments amount to nothing
                                                       more than asking this Court to sit as the
“thirteenth” juror and substitute our opinion
                                               for that of the trier of fact. While he has
                                                                                            cited to
authorities that explain nystagmus is an unre
                                              liable indicator of intoxication and may
                                                                                        result from
various congenital, pathologic, and toxic causes,
                                                  appellant did not present any of these argumen
                                                                                                  ts



                                                      ——
   to the jury through an expert. Rather, the
                                                nitly explanation the jury heard regarding app
                                                                                               ellant’s
   medical records was from the State through
                                                the testimony of Dr. Marcus Allen, an oph
                                                                                          thalmologist
   specializing in retinal detachments and deg
                                               eneration.
           Dr. Allen testified appellant suffered from
                                                       cataracts in both eyes and macular ede      ma in lila
   right eye. lie explained fluid accumulated in the
                                                     central   part ofthe retina reducing vision in the righ
                                                                                                            t
   eye. lie said appellanCs condition would
                                               not prevent him from seeing the lines on
                                                                                             the road and
   driving between them. Dr. Allen also spe
                                              cifically testified nystagmus is not a sympto
                                                                                               m a person
   generally experiences with appellant’s diag
                                               nosis. lie also testified that appellant’s “so
                                                                                              cial history”
  on his medical records indicated he consum
                                                ed two alcoholic beverages a day.
          Given Agent Odem’s and Porter’s testimony
                                                         ofappellant’s performance on the sobriety
                                                                                                      tests
  and Dr. Allen’s explanation ofthe medical reco
                                                  rds, it was not unreasonable for the jury to dete
                                                                                                     rmine
  appellant was intoxicated. Further, Agent Ode
                                                  m and Porter testified they smelled a stro
                                                                                               ng odor of
 alcohol coming from appellant. It was wit
                                             hin the province of the jury to determine
                                                                                         any conllicts in
 evidence, and they were unpersuadcd by
                                            appellant’s medical history regarding his
                                                                                           back and eye
 issues.

          Further, the jury saw and heard part of the
                                                          videotape of appellant’s performances on
                                                                                                    the
  sobriety tests. Appellant hesitated while ans
                                                  wering questions and had difficulty com
                                                                                            pleting his
 thoughts. The jury saw appellant struggle to
                                                follow simple instructions such as walkin
                                                                                          g heel-to-we
 nine steps during the walk and turn test and
                                                keeping his arms down by his side during
                                                                                           the one-leg
 stand test Appellant also had difficulty stan
                                               ding still while Agent Odem tried to handcu
                                                                                           ffhim. The
jury was free to consider the video as direct
                                               evidence of intoxication. See Paschail, 285
                                                                                            S.W.3d at
 177.




                                                -6-
              I ikewise, the iirv was the oIe udgc
                                                   ot witness credibility ,intl was tree
                                                                                         k) disbelieve
   ippcl I nit s loitettiuc Ii icnd M uk ( ishin
                                                 in                tcg   mit nt thc taunt tnt     1 ilcohk)l thcv consiiincd it I hc
    nit   tOtal   Il uliftilt mc! ‘a   hcihci tpptil tnt   ‘a is   di a’ inc norm illy th   it   night    I uitlicr ‘ahule ippcll tnt
  argues in his brief that he was likely fatig
                                                ued tiom eating a heavy Mexican dinn
                                                                                            er, there is no
  testimony in the record indicating what he
                                               ate at the restaurant or that eating a heavy
                                                                                            Mexican meal
  could alti.et a persons ability to drive and
                                               perlonn field sobriety tests.

          /\ccordincly, the evidence as sufficient
                                                   to support appellant’s conviction of driv
                                                                                             ing while
  intoxicated. We overrule his first issue.

                                              Admission of Oral Offense Report

            In his second            issue,   appellant contends Agent Odem                 anticipated     appellant would be
  prosecuted ti.rDWI and composed an “artful onthe—s
                                                           cene narrative,” otherwise known as an
 inadmissible speaking offense report, whic
                                              h the trial court admitted as State’s
                                                                                      Exhibit I l’he                         .



 redacted audio and video portions of the
                                           tape were played for the jury. Appellan
                                                                                        t objected the
 evidence was improper hearsay
                                  and bolstering. The State responded that
                                                                               Agent Odem was not
describing appellant’s performance and appe
                                              arance fbr purposes of future litigation,
                                                                                         but rather his
observations were a natural part of commu
                                           nicating with appellant. Therefore, the
                                                                                     State argues the
audio and video portions were admissible
                                             under the present sense impression exception
                                                                                                to the
hearsay rule.

          A trial court’s decision regarding the admissi
                                                         bility of evidence                       is   reviewed for an abuse of
discretion. Cameron            v.   State. 241 S.W.3d 15, 19(Tex. Crim. App
                                                                            . 2007). Because trial courts are
in the best position to decide questions of adm
                                                              issibility, appellate courts uphold a trial
                                                                                                          court’s ruling
on the admissibility of evidence when
                                      it is within the reasonable zone of disag
                                                                                reement. hi. (citing
tvlontgomerv v.       State, 810 S.W.3d 372, 391 (Tex. Crim.
                                                             App. 1991)).
           Appellant tiled a pi cirtal motion to   suppress in   vhich he iirgett the trial CoUrt to suppress the
   narrated and reconled    coinnicntary   made by Agent ( )dcm Llnnng the I )W I inv
                                                                                      estiiat ion. I he trial
  court ranted the inot urn to suppress in part,
                                                   and the State redacted portions of the vide
                                                                                               otape prior
  to trial. At trial. appellant objected
                                         to I he remai nim audio track, but the trial cour
                                                                                           t overruled the
  objection and admitted it.

          Appellant rehes on I’ischcr       5’tutc, 252 S.W3d 375 (TexJ’r iiii.    App.   2008) to   support   his
  argument. Ilie issue betore that court was
                                             whether a law enftrcement otfieer’s factual
                                                                                         observations
  of a DWI suspect, contemporaneously dict
                                              ated on his patrol car videotape, are adm
                                                                                         issible as a
  present sense impression exception to the hear
                                                 say rule under lexas Rule ot hViddnce
                                                                                       803(1). hI. at
  376. [he court concluded they are not. Id.
                                                  In that case. afler pulling over the driver
                                                                                               for failing to
  wear a seatbelt. the officer conducted a
                                            road—side investigation into a suspected UWI
                                                                                               offense. Id.
   The officer made ftnir separate trips back to his
                                                      patrol car br the specific purpose of
                                                                                            narrating what
  he had seen, smelled, and heard during his inve
                                                      stigatory stop. hi. at 385. [Ic continually
                                                                                                    retirred
 to the driver as “the subject” (luring his narra
                                                    tives, hi. at 384—85. [Ic offered his opin
                                                                                                   ions and
 conclusions about what his investigation
                                            revealed and how the driver performed on
                                                                                         the field sobriety
 tests. Id. at 385.

        ‘[he court of criminal appeals concluded “The
                                                      recorded factual observations made by polic
                                                                                                  e
officers investigating a   suspected crime are not the type of ‘non-refl
                                                                         ective’ street-corner statements
of objective observers that the present sense impr
                                                   ession exception is designed to allow.”
                                                                                           Id. at 383.
 Present sense impressions are admitted beca
                                              use they are non-narrative, off-han
                                                                                  d comments made
without any thought of potential litigation
                                            by a neutral and detached observer with
                                                                                     out any motive
to fabricate, falsify, or exaggerate his
                                         observations. Id. The court further
                                                                               noted         “on-the-scene
observations and narrations of a police offic
                                               er conducting a roadside investigation of
                                                                                         a DWI offense



                                                   —8—
   are tiaught with the thought of Ikiture pro
                                               secutio  n.” lii.
            Appellant contends the statements Age
                                                  nt Odern made during the slop “were calc
                                                                                           ulated
   implied assertions, albeit cloaked as instruc
                                                 tions to questions, that Appellant was
                                                                                        intoxicated by
   reason of alcohol” We cannot agree wit
                                            h appellant’s argument
           Unlike the officer in FLicker, Agent Odcin
                                                         did not repeatedly return to his patrol carlo
                                                                                                         record
   a separate narration of his observations.
                                               Instead, Agent Odem made comments dire
                                                                                            ctly to appellant
    such as telling appellant to stay in his
                                             car, asking him to get out his license
                                                                                       and insurance, and
   providing him basic instructions to the
                                             various sobriety tests. These were unrefle
                                                                                           ctive statements
   and instructions that were part of his com
                                               munication with appellant that happened
                                                                                            to be recorded,
   which the present sense impression exc
                                             eption to the hearsay rule allows. See
                                                                                       . e.g.. Cakieron v.
   State, 08-09-00315-CR, 2011 WL 173406
                                                 8 (‘Fex. App—El Paso May 4, 2011,
                                                                                           pet. ref’d) (not
  designated for publication) (distinguish
                                           ing Fischer and concluding officer’s videota
                                                                                            ped statements
  to DWI suspect were not inadmissible hea
                                              rsay because they were not part ofa separat
                                                                                           e narration, but
  rather the officer’s attempt to determine
                                              whether appellant was going to be able
                                                                                         to complete the
 sobriety tests). They were not deliberate opi
                                               nions and conclusions regarding appella
                                                                                         nt’s intoxication
 that the court ofcriminal appeals disapprove
                                                 d in Fischer. Accordingly, the trial cou
                                                                                          rt did not abuse
 its discretion by admitting State’s Exhibit
                                               1. Appellant’s second issue is overruled.

                                               Conclusion
        Having overruled appellant’s issues, we
                                                affirm the trial court’s judgm      ent.




                                                         MICHAEL J. ONEILL
Do Not Publish                                           JUSTICE        /
TEx. R. APP. P.47          1 10497F.U05




                                                 -9-
                                            /   .




                                     Q..LuIrt iii
                          .‘IIi1I! Ji’.LLiCt ut tLLXd3 I1 JlL1&l

                                           JUDGMENT
IL\NI)ALL. (L;\YI()N \1j\Y. Appellant                 Appeal ftoiu the ( otinty Court at Law No. 4
                                                      olCollin County, 1’exas, (FrCLNo. OO4
No. O5 I I OO497CR                                    5 1O9).
                                                       )pinion delivered by .J ustice ( )‘ Nd Ii,
II IIz STiVFIi OF TFXAS, Appellee                     Justices FitzGerakl and LangMiers,
                                                      participating.



        Based on the Court’s opinion ol this date, the judinent of the trial   court is AIFI Hi I Kil.




Jn(lumeflt entered November 27, 2() 1 2.




                                                     JUSTICE
