                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-283-CR


ROBERT LEE WARD                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Robert Lee Ward appeals his conviction for driving while intoxicated. In

two points, he argues the evidence is legally and factually insufficient to prove

he operated a motor vehicle. 2 We affirm.


      1
           See Tex. R. App. P. 47.4.
      2
        Appellant does not contest that he was intoxicated at the time of the
single-vehicle accident.
                    II. Factual and Procedural Background

      Appellant was charged with driving while intoxicated, a class B

misdemeanor. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Appellant

pled not guilty, and the trial court conducted a bench trial on August 20, 2008.

      Arlington Police Officer Phillip Hinkle testified he received a dispatch at

3:07 a.m. on March 11, 2007. Officer Hinkle testified over Appellant’s hearsay

objection that the 9-1-1 caller said a white SUV hit a tree and a pole on Harris

Road and that the driver was wearing a blue-striped shirt. Officer Hinkle said

that he was near the accident scene when he received the dispatch, and that

upon arrival, he saw the white SUV leaned against a tree and a white male

wearing a blue shirt with stripes leaving the scene on foot. Appellant matched

the description received through dispatch, was the only person in the area, and

was twenty to thirty feet from the vehicle when Officer Hinkle arrived. While

testifying, Officer Hinkle identified Appellant as the person he saw the night of

the accident.

      Officer Hinkle testified he pulled his patrol car into the path Appellant was

travelling, exited the patrol car, and made contact with Appellant.        Officer

Hinkle asked Appellant for his name, and Appellant gave Officer Hinkle his

driver’s license. Officer Hinkle noticed a scratch on Appellant’s forehead, but

Appellant declined medical care. Officer Hinkle also observed Appellant to be

                                        2
disoriented, somewhat confused, and unable to maintain his balance. On cross-

examination, Officer Hinkle acknowledged he did not see the vehicle in

operation, did not see anyone inside the vehicle, and did not talk to anyone that

saw the vehicle in operation or a person inside the vehicle.

      Officer Walt Mathis testified he arrived at the accident scene

approximately seven minutes after receiving the dispatch. Upon arrival, he

noticed Appellant had a strong smell of an alcoholic beverage. Officer Mathis

also testified he found an insurance card in Appellant’s name inside the

wrecked vehicle.

      Officer Chad Hickey testified he arrived at the accident scene

approximately fifteen minutes after the dispatch. When he opened the door of

the patrol car in which the officers detained Appellant, Officer Hickey was

“overwhelmed by the strong odor of an alcoholic beverage.” Officer Hickey

testified that Appellant had bloodshot, glassy, and watery eyes, that Appellant

had slurred speech, and that Appellant “was stumbling a little bit” while he

stood and talked to Officer Hickey. Appellant denied having anything to drink

but refused all field sobriety tests. In the patrol car on the way to the jail,

Appellant asked Officer Hickey, “[W]hat was the big deal about what happened

back there[;] all [I] hit was a pothole.” At the jail, Appellant said, “I messed up,

didn’t I[?]”

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      The trial court found Appellant guilty as charged and sentenced Appellant

to fifteen days’ confinement and a $650.00 fine. This appeal followed.

                                    III. Analysis

A.    Legal Sufficiency of the Evidence

      Appellant argues in his first point that the evidence is legally insufficient

to support his conviction because no witness saw him operate a motor vehicle

and he did not admit to operating a motor vehicle.

      1.     Standard of Review

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

we view all of 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).

      The standard of review for cases based on circumstantial evidence is the

same as the standard for reviewing cases with direct evidence. Laster v. State,

275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009); King v. State, 29 S.W.3d

556, 565 (Tex. Crim. App. 2000). In cases based on circumstantial evidence,

it is not required that all facts point to a defendant’s guilt; it is sufficient if the

combined and cumulative force of all of the incriminating circumstances

                                          4
warrants the conclusion of guilt. See Courson v. State, 160 S.W.3d 125, 128

(Tex. App.—Fort Worth 2005, no pet.) (citing Johnson v. State, 871 S.W.2d

183, 186 (Tex. Crim. App. 1993) (en banc), cert. denied, 511 U.S. 1046

(1994)).

      2.    Applicable Law

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

operates a motor vehicle in a public place without the normal use of mental or

physical faculties due to the introduction of alcohol or other substances into the

body. Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). The

corpus delicti of driving while intoxicated is that someone drove or operated a

motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.

Crim. 497, 498, 250 S.W.2d 200, 200 (1952).

      3.    Discussion

      Appellant contends the hearsay evidence of the 9-1-1 caller’s description

of the driver cannot establish the sufficiency of the evidence because the

hearsay evidence was only admissible to establish probable cause. 3           We

disagree. In conducting a legal sufficiency review, we are required to review

all evidence admitted at trial, even improperly admitted evidence.       Moff v.


      3
        Appellant does not argue the trial court incorrectly overruled his
objection.

                                        5
State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004); Shaffer v. State, 184

S.W.3d 353, 359 (Tex. App.—Fort Worth 2006, pet. ref’d).

      Appellant also contends we must reverse his conviction because no one

saw him operating the vehicle. Appellant relies heavily on this court’s opinion

in Hanson v. State, in which we reversed the trial court’s judgment and held

there was insufficient evidence to support the conviction because “the State

did not introduce evidence to show Hanson ever drove the car.” 781 S.W.2d

445, 447 (Tex. App.—Fort Worth 1989), pet. abated, 790 S.W.2d 646 (Tex.

Crim. App. 1990). In Hanson, the police officers observed a wrecked vehicle

with Hanson beside the vehicle. Id. at 446. Hanson had no visible injuries but

seemed upset. Id. Hanson admitted to officers that she had been driving the

car at the time of the accident. Id. However, the State had no other evidence

that Hanson drove or owned the car. Id. Because we could not consider

Hanson’s out-of-court statements “unless the fact that the crime was

committed ha[d] been established by other evidence,” we held the evidence

insufficient to support the conviction. Id. Hanson is distinguishable because

the conviction here is not dependent upon an uncorroborated extra-judicial

admission by Appellant. See Turner v. State, 877 S.W.2d 513, 516 (Tex.

App.—Fort Worth 1994, no pet.).



                                      6
      Neither an extra-judicial confession nor direct evidence is required to

prove that a DWI defendant was operating a vehicle; the State may prove the

identity of a vehicle’s driver by circumstantial evidence. See Hernandez v.

State, 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding

circumstantial evidence sufficient to prove defendant was driving vehicle when

defendant was the only person walking near wrecked vehicle despite

defendant’s assertion to investigating officers that he was not the driver and

that the driver had run away); Yeary v. State, 734 S.W.2d 766, 769 (Tex.

App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to

show defendant was driving vehicle when defendant was the only person in the

vicinity of wrecked vehicle and vehicle’s windshield was lying on defendant’s

body); see also Freeman v. State, No. 02-08-00079-CR, 2009 WL 579292, at

*3 (Tex. App.—Fort Worth March 5, 2009, no pet.) (mem. op., not designated

for publication) (holding circumstantial evidence sufficient to prove defendant

was driving vehicle when defendant was the only person in the vehicle, the

vehicle belonged to defendant, defendant was bleeding, and although he did not

admit to driving the vehicle, defendant told the police he had just been in a

wreck).

      There is legally sufficient circumstantial evidence in this case to prove

beyond a reasonable doubt that Appellant was driving the wrecked vehicle. A

                                      7
9-1-1 caller reported that a white SUV hit a tree and that the driver was

wearing a blue-striped shirt. Officer Hinkle saw Appellant, with a scratch on

his forehead and wearing a blue-striped shirt, approximately twenty to thirty

feet from the white SUV when he arrived at the accident scene; no one else

was in the area. Officer Mathis also found an insurance card inside the vehicle

indicating Appellant insured the vehicle. Further, Appellant voluntarily told

Officer Hickey that he “hit a pothole” and that he had “messed up.” Viewed

in the light most favorable to the prosecution, we hold that the evidence is

legally sufficient to support the trial court’s determination that Appellant

operated the vehicle while intoxicated. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule Appellant’s first point.

B.    Factual Sufficiency of the Evidence

      Appellant contends in his second point that the evidence is factually

insufficient to support his conviction because no witness saw him operate a

motor vehicle and he did not admit to operating a motor vehicle.

      1.    Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

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

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

                                       8
2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. 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

wrong or manifestly unjust simply because we would have decided differently

than the factfinder or because we disagree with the factfinder’s resolution of

a conflict in the evidence. Id. We may not simply substitute our judgment for

the factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000);

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).             Unless the

record clearly reveals that a different result is appropriate, we must defer to the

factfinder’s determination of the weight to be given contradictory testimonial

                                        9
evidence because resolution of the conflict “often turns on an evaluation of

credibility and demeanor, and those jurors were in attendance when the

testimony was delivered.”     Johnson, 23 S.W.3d at 8.        Thus, unless we

conclude that it is necessary to correct manifest injustice, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Id. at 9.

      2.    Discussion

      In this case, a 9-1-1 caller reported that a white SUV hit a tree and that

the driver was wearing a blue-striped shirt. When he arrived, Officer Hinkle

saw Appellant, wearing a blue-striped shirt, approximately twenty to thirty feet

from the white SUV. Appellant had a scratch on his forehead, and there were

no other persons in the area. Officer Mathis found an insurance card showing

Appellant insured the vehicle. Further, Appellant voluntarily told Officer Hickey

that he “hit a pothole” and “I messed up, didn’t I.” Viewing all of the evidence

in a neutral light, we cannot say that the evidence is so weak that the trial

court’s determination that Appellant operated the vehicle while intoxicated is

clearly wrong and manifestly unjust or that the conflicting evidence so greatly

outweighs the evidence supporting the verdict that the trial court’s

determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson,

204 S.W.3d at 414–15, 417. We overrule Appellant’s second point.

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                            IV. Conclusion

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

judgment.



                                       ANNE GARDNER
                                       JUSTICE

PANEL: CAYCE, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2009




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