                                   NO. 07-06-0189-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                   MAY 14, 2007
                          ______________________________

                        AUGUSTINE LOPEZ, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2005-408801; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Augustine Lopez, Jr., appeals his conviction for felony driving while

intoxicated and sentence of 30 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. We affirm.


                                       Background


       On June 12, 2004, the Lubbock Police Department received two 911 calls regarding

a person driving erratically on 19th Street in Lubbock. The callers described the vehicle as
a silver, boxy, older-model car. One of the callers followed the vehicle and was able to see

the driver. She described the driver as appearing “intent or spacey” and noticed that he

had a “death grip” on the steering wheel.


       Corporal James Rohlik heard a radio call regarding a possible driving while

intoxicated offense involving a silver, older-model car. Rohlik observed appellant walking

away from a vehicle that matched the description of the vehicle given by dispatch. Rohlik

requested appellant to stop and talk with him, but appellant fled. Appellant tripped on

some stairs and was apprehended by Rohlik. While detaining appellant, Rohlik smelled

alcohol on appellant’s breath. Rohlik arrested appellant for public intoxication and evading

arrest. Rohlik did not arrest appellant for driving while intoxicated because he had not

seen appellant in physical control of a vehicle. Rohlik did not perform field sobriety tests,

but observed that appellant had poor balance and coordination as Rohlik walked him to the

patrol car.


       During the booking process at the jail, appellant admitted that he had drunk alcohol

that evening. The next morning, appellant was taken before a magistrate for arraignment.

Appellant pled guilty to the offense of public intoxication at this hearing. Subsequently,

appellant was indicted for driving while intoxicated.


       Before trial on the driving while intoxicated charge, appellant stipulated to two prior

driving while intoxicated convictions. During trial, the State offered appellant’s plea of guilty

to public intoxication as evidence that he was intoxicated on the night in question.

Appellant presented evidence that he has diabetes and that his diabetic episodes


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sometimes make him disoriented and shaky. Further, appellant presented evidence that

he needed medication on the night in question because his sugar was low. The jury found

appellant guilty of driving while intoxicated and the trial court assessed a sentence of 30

years confinement.


       By four issues, appellant appeals his conviction and sentence. By his first issue,

appellant contends that the trial court erred when it allowed appellant’s plea of public

intoxication to be admitted into evidence when the plea does not show on its face that

appellant was properly admonished prior to making the plea. By his second issue,

appellant contends that the trial court erred by admitting appellant’s plea of public

intoxication as proof of intoxication in a driving while intoxicated trial. By his third and

fourth issues, appellant contends that the evidence was both legally and factually

insufficient to support his conviction for driving while intoxicated.


                                          The Plea


       Appellant contends that the trial court erred by allowing admission of a

Preconfinement Order on which appellant pled guilty to the offense of public intoxication.

Appellant contends that the Preconfinement Order is inadmissible because it constitutes

a written statement of the accused that does not comply with the requirements identified

in Texas Code of Criminal Procedure article 38.22, section 2. Specifically, appellant’s

appellate argument is that the Preconfinement Order does not show on its face that “the

accused, prior to making the statement, either received from a magistrate the warning

provided in Article 15.17" or received the warnings itemized in article 38.22, section 2(a).


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TEX . CODE CRIM . PROC . ANN . art. 38.22, § 2(a) (Vernon 2005). However, at trial, appellant

raised no objection regarding the statement’s failure to comply with article 38.22. Thus,

appellant failed to preserve any error regarding the failure of appellant’s “statement” to

include the requisite admonishments for appellate review. See TEX . R. APP. P. 33.1. We

overrule appellant’s first issue.


       Appellant also contends that evidence of appellant’s plea of guilty to a charge of

public intoxication was inadmissible in a driving while intoxicated trial as proof that

appellant was intoxicated because the standard for proving intoxication is different for each

charge. Again, appellant failed to preserve this appellate issue by timely objection at trial

and, therefore, has waived this issue. Id. Further, we note that appellant’s guilty plea on

the charge of public intoxication is probative, even if not conclusive on the element of

intoxication, in a driving while intoxicated trial.1 Appellant’s second issue is overruled.


                               Legal and Factual Sufficiency


       Appellant contends that the evidence is both legally and factually insufficient to

support his conviction for driving while intoxicated. When reviewing challenges to both the

legal and factual sufficiency of the evidence to support the verdict, we first review the legal

sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

If the evidence is legally sufficient, we then review the factual sufficiency challenge. See

id.



       1
       For example, appellant’s plea was probative of whether he had consumed alcohol
on the night in question.

                                              4
       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       To prove that a person is guilty of the offense of driving while intoxicated, the State

must prove that the person was intoxicated while operating a motor vehicle in a public

place. TEX . PEN . CODE ANN . § 49.04(a) (Vernon 2003). For purposes of the present case,

intoxication is defined as “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 . PEN . CODE ANN . § 49.01(2)(A) (Vernon 2003).


       Appellant’s legal sufficiency issue challenges the evidence of appellant’s

intoxication. One witness testified that she saw a silver vehicle traveling south on

University on June 12, 2004. She testified that the driver of this vehicle appeared to fall

asleep and that, when he awoke, he drove erratically, swerving across the road and

bouncing off of curbs. Based on her observations, she believed that the driver of the

vehicle was drunk. Another witness saw a silver, boxy, older-model vehicle traveling south

on University on June 12. This witness followed the vehicle, got a good look at the driver,

                                              5
and was able to identify appellant as the driver of that vehicle. The witness testified that

appellant drove fast and erratically and that he had several near-collisions. Finally,

Corporal Rohlik testified that he saw appellant walking away from a silver vehicle that

matched the description of the vehicle that had been reported as being involved in a

suspected driving while intoxicated offense. When Rohlik attempted to talk to appellant,

appellant fled. When appellant was apprehended, Rohlik testified that he smelled alcohol

on appellant’s breath. Rohlik also testified that appellant had a stereo face plate in his

possession that matched a stereo in the silver vehicle that Rohlik had seen appellant

walking away from. Rohlik also testified that he observed appellant exhibit poor balance

and coordination and concluded that appellant had lost the normal use of his mental and

physical faculties because of the use of alcohol. Further, the Preconfinement Order and

other records established that appellant admitted that he had been drinking on June 12

and that he believed that he was intoxicated. Viewing this evidence in the light most

favorable to the verdict, we conclude that there was sufficient evidence for a reasonable

jury to conclude that appellant was intoxicated beyond a reasonable doubt.2 We overrule

appellant’s legal sufficiency issue.


       Having determined that the evidence was legally sufficient to support appellant’s

conviction, we now turn to the factual sufficiency of the evidence. When an appellant

challenges the factual sufficiency of the evidence supporting his conviction, the reviewing



       2
        Appellant does not challenge the “operating a motor vehicle” or the “in a public
place” elements of the offense. However, for the sake of completeness, we conclude that
there was sufficient evidence to allow a reasonable jury to have found each of these
elements beyond a reasonable doubt.

                                             6
court must determine whether, considering all the evidence in a neutral light, the jury was

rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson

v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency

review, we must give deference to the fact finder’s determinations if supported by evidence

and may not order a new trial simply because we may disagree with the verdict. See id.

at 417. As an appellate court, we are not justified in ordering a new trial unless there is

some objective basis in the record demonstrating that the great weight and preponderance

of the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion

addressing factual sufficiency must include a discussion of the most important evidence

that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603

(Tex.Crim.App. 2003).


       By his factual sufficiency issue, appellant again challenges only the jury’s necessary

finding that appellant was intoxicated. Appellant identifies evidence establishing that he

suffered from high blood pressure and diabetes that, when not promptly medicated, can

result in symptoms that leave the appearance that appellant is intoxicated. Considering

this evidence in a neutral light, the jury could have concluded that appellant was suffering

from diabetic symptoms rather than intoxication on June 12 . However, the jury heard the

testimony of two eyewitnesses about appellant’s erratic driving and could reasonably infer

from this testimony that appellant had lost the normal use of his mental and physical

faculties. Additionally, the jury heard evidence that appellant had alcohol on his breath,

admitted that he had drunk alcohol on June 12, and characterized himself as having been

intoxicated. Considering all of this evidence in a neutral light, we cannot say that the


                                             7
evidence supporting the verdict was so weak or that the contrary evidence was so strong

that a rational jury could not have determined that appellant committed the offense of

driving while intoxicated beyond a reasonable doubt. We overrule appellant’s factual

sufficiency issue.


                                       Conclusion


       Having overruled each of appellant’s issues, we affirm the trial court’s judgment.




                                                Mackey K. Hancock
                                                    Justice


Publish.




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