Opinion filed April 1, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-08-00209-CR
                                           __________

                              JUSTIN MCCULLOUGH, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                                On Appeal from the County Court

                                        Ector County, Texas

                                  Trial Court Cause No. 07-3935


                               MEMORANDUM OPINION
       The jury convicted Justin McCullough of driving while intoxicated. The trial court sentenced
McCullough to six months in jail, probated for one year, and fined McCullough $800. We affirm.
                                        I. Background Facts
       McCullough crashed his pickup into the east and west guardrails of a two-lane highway.
McCullough testified that he hit the guardrails after swerving to miss a coyote and that he thought his
right rear tire blew out before contact. Immediately after the accident, McCullough called his father,
who arrived at the scene at approximately 12:25 a.m., checked his son for injuries, and then called the
local sheriff’s department.
       Trooper John Martinez was dispatched and arrived at the scene of the accident around
12:45 a.m. Trooper Martinez noticed that McCullough’s eyes were bloodshot and glassy, and he
smelled alcohol on McCullough’s breath. McCullough admitted that he had a beer after work and then
another two beers and a mixed drink at his girlfriend’s house between 7 p.m. and 10:30 p.m.
       Trooper Martinez had McCullough perform three field sobriety tests. Trooper Martinez first
tested McCullough with the Horizontal Gaze Nystagmus (HGN) test. McCullough exhibited six clues
of intoxication. Trooper Martinez then had McCullough perform the walk-and-turn test. Before
starting, McCullough informed Trooper Martinez that he had a bad knee. Trooper Martinez observed
five out of seven intoxication clues on this test. In the final test, the one-leg stand, Trooper Martinez
observed two out of three clues. Trooper Martinez then arrested McCullough for driving while
intoxicated.
                                    II. Legal & Factual Sufficiency

       McCullough complains on appeal that his conviction is supported by legally and factually
insufficient evidence. To determine if the evidence is legally sufficient, we must 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 essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the
evidence is factually sufficient, we review all the evidence in a neutral light and determine whether the
evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or
whether the verdict is against the great weight and preponderance of the conflicting evidence.
Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
       The jury, as trier of fact, is the sole judge of witness credibility and of the strength of the
evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to
believe or disbelieve any portion of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). The appellate court should not reweigh the evidence as a thirteenth juror or decide
whether it believes the evidence established the elements in question beyond a reasonable doubt.
Gibbs v. State, 819 S.W.2d 821, 834 (Tex. Crim. App. 1991).
                                                2
         McCullough questions the reliability and credibility of Trooper Martinez’s testimony and
contends that, without it or evidence of McCullough’s blood alcohol level, the State did not present
sufficient evidence to prove that McCullough drove while intoxicated. Intoxication is defined by law as
not having the normal use of mental or physical faculties by reason of the introduction of alcohol or
having an alcohol concentration of .08 or more. TEX. PENAL CODE ANN. § 49.01(2)(A), (B) (Vernon
2003).
         McCullough argues that Trooper Martinez’s testimony was unreliable and not credible because
the officer inadequately investigated the accident, made numerous mistakes on his paperwork, testified
inconsistently, prematurely concluded and operated under the bias that McCullough was intoxicated,
and did not employ other field sobriety tests after learning that McCullough had knee problems. The
mistakes and alleged deficiencies Trooper Martinez made during his investigation were heard and
considered by the jury. It is not our role to determine witness credibility or reliability, and the jury was
free to accept or reject any portion of Trooper Martinez’s testimony as well as any of the other
witnesses.
         McCullough also attacks Trooper Martinez’s credibility based on the officer’s administration of
the HGN test. McCullough relies on State v. Rudd to assert that an HGN test conducted off-camera is
not credible as a matter of law State v. Rudd, 255 S.W.3d 293 (Tex. App.—Waco 2008, pet. ref’d).
The court in Rudd held that the trial court did not abuse its discretion when it found that the State failed
to prove that the officer properly administered the test and suppressed the evidence. Id. at 301. We are
not addressing the admissibility of evidence, only its sufficiency. McCullough’s reliance on Rudd is
misplaced.
         Sufficient evidence established that McCullough drove while intoxicated: McCullough’s
admission to drinking alcohol and that the accident occurred, testimony about his poor performance on
the sobriety tests, and his behavior and demeanor at the scene of the accident. Viewed in the light most
favorable to the jury’s determination, the jury acted rationally when it concluded that McCullough was
guilty of driving while intoxicated. The evidence is also not so weak or against the great weight of
conflicting evidence to undermine our confidence in the jury’s decision. Accordingly, we overrule
McCullough’s sufficiency challenges.


                                                     3
                                            III. Conclusion

       The judgment of the trial court is affirmed.


                                                              RICK STRANGE
                                                              JUSTICE


April 1, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                  4
