                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00196-CR
        ______________________________


         THOMAS FOSTER, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the County Court at Law # 2
               Hunt County, Texas
           Trial Court No. CR0900218




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION

           Thomas Foster, Jr., was convicted in a bench trial of driving while intoxicated (DWI).

Because this was his second offense, Foster’s DWI was punishable as a class A misdemeanor, and

he was sentenced to 200 days’ confinement in county jail.1 His sole ground of appeal challenges

the legal and factual sufficiency of the evidence relating to his intoxication. Because we find the

evidence sufficient, we affirm the trial court’s judgment.

           We will review the legal and factual sufficiency of the evidence supporting Foster’s

conviction under well-established standards.               In conducting a legal sufficiency review, we

consider the evidence in the light most favorable to the trial court’s judgment to determine whether

any rational trier of fact could have found the essential elements of DWI beyond a reasonable

doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We defer to the judge’s

responsibility “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required

to determine whether we believe that the evidence at trial established guilt beyond a reasonable

doubt; rather, when faced with conflicting evidence, we presume that the trial judge resolved any

such conflict in favor of the prosecution, and we defer to that resolution. State v. Turro, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).



1
    TEX. PENAL CODE ANN. § 49.09(a) (Vernon Supp. 2009).

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       In conducting a factual sufficiency review, we consider the evidence in a neutral light.

Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). The trial court’s judgment

will be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and manifestly unjust, or (2) it is against the great weight and preponderance of the

evidence. Id. at 415 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both

legal and factual sufficiency are measured by the elements of the offense as defined by a

hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);

see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

       A person “commits an offense if the person is intoxicated while operating a motor vehicle

in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). Thus, the applicable

hypothetically-correct charge would require proof of the following elements: that (1) Foster,

(2) operated, (3) a motor vehicle, (4) in a public place, (5) while intoxicated. Foster only

challenges the fifth element. The term “intoxicated” means, among other things, “not having the

normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled

substance, a drug, a dangerous drug, a combination of two or more of those substances, or any

other substance into the body. . . .” TEX. PENAL CODE ANN. § 49.01(2)(A) (Vernon 2003).

       Officer William Yanish was the only witness who testified at the bench trial. Yanish

stopped Foster for speeding and noticed “[t]he strong -- extreme severe odor of an alcoholic

beverage” wafting from Foster’s mouth. Foster admitted to ingesting between four or six



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sixteen-ounce cans of Natural Light, and told Yanish he had just finished a beer prior to the stop.

His speech was “[not] so much slurred. It’s thick-tongued.” Foster exhibited clues of intoxication

during the administration of the “[w]alk-and-turn,” one-legged stand, and several horizontal gaze

nystagmus tests. During the walk-and-turn, Foster “couldn’t maintain balance during instruction;

he missed heal [sic] to toe; [F]oster stepped off the line; he used his arms for balance; made an

improper turn; and took the wrong number of steps.” While attempting the one-legged stand test,

he “[s]wayed while balancing, used his arms for balance, he hopped, then he put his foot down.”

During the preliminary breath test, he told Yanish “this wasn’t going to be good.” Based on his

observations, Yanish concluded Foster “had lost the normal use of his mental or physical

faculties,” and arrested him for DWI.        Foster refused to take the breathalyzer test after

transportation to the Intoxilyzer room. The video recording of the stop corroborates Yanish’s

testimony and depicts a stumbling, unbalanced Foster who had difficulty following directions.

       Foster claims this evidence was insufficient to establish that he was intoxicated and

complains he could not pass the one-legged stand test because he had an injured knee. He points

to evidence demonstrating he recited the alphabet, passed the finger dexterity test, and had eaten at

Taco Bell that day to suggest he was not intoxicated.

       Our review of the evidence leads us to decide the trial court could have rationally found

Foster did not have “the normal use of mental or physical faculties by reason of the introduction of

alcohol.” TEX. PENAL CODE ANN. § 49.01(2)(A). Even reviewing the evidence in a neutral light,



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we cannot say the judgment was clearly wrong, manifestly unjust, or against the great weight and

preponderance of the evidence.

       We conclude the evidence of Foster’s intoxication was both legally and factually

sufficient. We affirm the trial court’s judgment.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       May 26, 2010
Date Decided:         May 27, 2010

Do Not Publish




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