Opinion filed August 6, 2015




                                        In The


        Eleventh Court of Appeals
                                       __________

                                 No. 11-13-00241-CR
                                       __________

                 JAMES EDWARD SHAW JR., Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee

                      On Appeal from the 29th District Court
                                Palo Pinto County, Texas
                               Trial Court Cause No. 14957


                      MEMORANDUM OPINION
      Appellant, James Edward Shaw Jr., appeals his conviction for felony driving
while intoxicated.    After a bench trial, the trial court sentenced Appellant to
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of forty years and a fine of $10,000. In one issue on appeal,
Appellant challenges the sufficiency of the evidence to support his conviction. We
affirm.
                                 Background Facts
      Trooper Burt Blue of the Texas Department of Public Safety testified that he
saw Appellant driving a vehicle after dark without the taillights activated. When
Trooper Blue stopped Appellant, he smelled “the odor of alcohol coming from the
truck.” Appellant stepped out of the vehicle, and Trooper Blue noticed that he had
bloodshot eyes and that his speech was “real thick-tongued and slurred.” Trooper
Blue asked Appellant if he had had anything to drink, and Appellant said that he had
drunk “two Natural Lights.”
      Trooper Blue then conducted three field sobriety tests. Appellant exhibited
six out of six possible clues for intoxication on the horizontal gaze nystagmus test.
Appellant next performed the walk-and-turn test. Trooper Blue observed seven out
of eight possible clues for intoxication. Appellant then attempted the one-leg stand
test. Appellant displayed three out of four possible clues for intoxication.
      After conducting the field sobriety tests, Trooper Blue determined that
Appellant was too intoxicated to drive. Trooper Blue arrested Appellant for driving
while intoxicated. Trooper Blue then transported Appellant to the Palo Pinto
General Hospital.    Appellant initially consented to giving a breath specimen.
However, the intoxilyzer testing machine malfunctioned, resulting in Trooper Blue
being unable to collect a breath specimen. Appellant then refused to give a blood
specimen that Trooper Blue subsequently requested.
                                      Analysis
      In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence to support his conviction. He characterizes his evidentiary contention as a
factual sufficiency challenge. In doing so, he concedes in his brief that the evidence
was legally sufficient. We review a sufficiency of the evidence issue, regardless of
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whether it is denominated as a legal or factual claim, under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Irrespective of Appellant’s concession that the
evidence was legally sufficient, we will review the sufficiency of the evidence
supporting his conviction to determine if it is sufficient under Jackson.
      Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting
a sufficiency review, we consider all the evidence admitted at trial, including pieces
of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). In conducting a sufficiency review, we defer to the factfinder’s role as
the sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty 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;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution and
defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      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) (West Supp. 2014).            Appellant attacks only the element of
intoxication. Under the Texas DWI statute, intoxication may be proven in either of
two ways: (1) loss of normal use of mental or physical faculties or (2) alcohol
concentration in the blood, breath, or urine of 0.08 or more. Id. § 49.01(2) (West
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2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). The first
definition is the “impairment” theory, while the second is the “per se” theory.
Kirsch, 306 S.W.3d at 743. We are only concerned with the impairment theory in
this appeal because a specimen was not obtained from Appellant for testing.
Circumstantial evidence may prove that a person has lost the normal use of his
mental or physical faculties by reason of introduction of a controlled substance or
drug into his body. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim. App.
1973). For purposes of the DWI statute, proving an exact intoxicant is not an
element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).
      Appellant premises his evidentiary challenge to the element of intoxication on
a number of arguments. He initially contends that the malfunction of the intoxilyzer
testing machine deprived him of the opportunity to disprove that he was intoxicated.
He also asserts that he informed Trooper Blue that he had back problems and a
speech impediment and that these conditions provided an explanation for the matters
that Trooper Blue observed about his physical condition. Appellant additionally
contends that the video recording of his encounter with Trooper Blue did not support
the finding that he was intoxicated.
      Trooper Blue testified that he saw Appellant driving without his vehicle’s
taillights on after dark. When Trooper Blue stopped Appellant, he smelled “the odor
of alcohol coming from the truck,” and Trooper Blue noticed that Appellant had
bloodshot eyes and that his speech was “real thick-tongued and slurred.” Trooper
Blue asked Appellant if he had had anything to drink, and Appellant said that he had
drunk “two Natural Lights.”
      Trooper Blue then conducted three field sobriety tests.         In this regard,
Trooper Blue has been a trooper since 2006, and he testified that he had been trained
to conduct standard field sobriety tests. Trooper Blue additionally testified that he
has attended an advanced DWI class and that he is also certified as a drug recognition
                                          4
expert. He also testified that he has made “[m]any” arrests for DWI and that he has
had “[m]any” occasions to observe people whom he believed to be intoxicated.
Trooper Blue testified that Appellant failed all three tests.           Based on his
observations, Trooper Blue concluded that Appellant was intoxicated while
operating a motor vehicle. Trooper Blue’s testimony is probative evidence of
intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]
1979) (as a general rule, the testimony of an officer that a person is intoxicated
provides sufficient evidence to establish the element of intoxication for the offense
of DWI); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,
pet. ref’d) (same); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref’d) (same).
      With respect to Appellant’s contention that he was denied a chance to give a
breath sample to disprove that he was intoxicated, it is within the officer’s discretion
to determine what method to use when testing for intoxication. TEX. TRANSP. CODE
ANN. § 724.012(c) (West 2011); Aguirre v. State, 948 S.W.2d 377, 379–80 (Tex.
App.—Houston [14th Dist.] 1997, pet. ref’d); Drapkin v. State, 781 S.W.2d 710, 712
(Tex. App.—Texarkana 1989, pet. ref’d). It is significant to note that Trooper Blue
offered Appellant the opportunity to provide a blood specimen when he determined
that a breath test was not available and that Appellant declined the opportunity.
      The video recording from Trooper Blue’s dashcam was introduced into
evidence. We have reviewed the video in our review of the record. We conclude
that the video supports Trooper Blue’s trial testimony. Appellant’s perception of the
video and his alleged physical problems were matters available for the trial court to
consider in determining Appellant’s guilt/innocence. Under the applicable standard
of review, we presume that the factfinder resolved Appellant’s perceived
deficiencies in the evidence in favor of the verdict, and we defer to that resolution.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We conclude that the
                                           5
evidence is sufficient to support Appellant’s conviction because a rational trier of
fact could have found the elements of the offense beyond a reasonable doubt based
upon Trooper Blue’s testimony. We overrule Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 6, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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