                                                                                   PD-1190-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                               Transmitted 10/19/2015 12:24:56 PM
                                                                  Accepted 10/19/2015 4:33:48 PM
                                                                                   ABEL ACOSTA
                             PDR No. PD-1190-15                                            CLERK

                    ________________________________

                     In the Court of Criminal Appeals Texas

                    ________________________________

                         JAIME LEE GAMEZ, Appellant

                                      V.

                           THE STATE OF TEXAS

                     _______________________________

                On Appellant’s Petition for Discretionary Review
                    From the Fourteenth Court of Appeals,
                        Appeal No. 14-14-00203-CR,
                    On Appeal from the 268th District Court
                         Of Fort Bend County, Texas
                         Cause No. 012-DCR-061850
                    _______________________________
                 PETITION FOR DISCRETIONARY REVIEW
                   FOR APPELLANT, JAIME LEE GAMEZ

                    ______________________________________


Oral Argument Requested

Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401
Texas Bar No. 00793616
                                                October 19, 2015
Attorney for Appellant



                                       i
              IDENTITY OF JUDGE, PARTIES AND COUNSEL


 Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a

complete list of the trial court judge, all the parties to the judgment or order

appealed from, and the names and addresses of counsel in the trial and on appeal:


Trial Court Judge:
The Honorable Brady G. Elliott
Presiding Judge 268th District Court
Fort Bend County, Texas

Appellant:
Jaime Lee Gamez

Counsel for Appellant:
Lee D. Cox (at trial)
201S. Eleventh Street
Richmond, Texas 77469


Counsel for the State of Texas:
John F. Healey Jr.-District Attorney
Thomas L. Pfeiffer-Trial
John M. Hawkins-Trial
John Harrity-Appeal
Fort Bend County, Texas District Attorney’s Office
1422 Eugene Heimann Cir
Richmond, Texas 77469




                                         ii
                              Table of Contents


Identity of judge, parties and counsel………………………………………………ii


Index of Authorities………………………………………………………………...v


Statement                           Regarding                            Oral

Argument………………………………………………vi


Statement                                   of                             the

Case……………………………………………………….......…vii


Procedural History of the Case…………………………………...………………viii


Grounds for Discretionary Review…………………………………………………2


                               GROUND ONE


THE FOURTEENTH COURT OF APPEALS ERRED BY REFUSING TO FIND
 THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
        CONVICTION FOR DRIVING WHILE INTOXICATED



Reasons to Grant Review in Support of Ground for Review………………………2

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter.

Argument and Authorities In Support Of Grounds for Review……………………3

                                      iii
Prayer                                            for

Relief……………………………………………………………….…..12


Certificate of Compliance.………………………………………………………...13


Certificate                                       of

Service…...…………………………………………………….……14


Appendix

..…………………………………………………………………….…..15




                         iv
                          INDEX OF AUTHORITIES

CASES:

Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979)……………………….....…4

Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication)…………………………………………………………………….…6,7

Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006)..8, 9

Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986)…………………………..5

Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011)……….…...4, 5

Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication)………………………………………………………………………5, 6

Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987)…………………...8

Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995)……………...……7, 8




STATUTES, CODES AND RULES:

Tex. R. App. P. 9.4(i)…………..……………………………………………….....
12

                                       v
Tex. R. App. P. 9.5…………………………………...…………………………...13

Tex. R. App. P. 66.3(a)…………………………...…………………….……..iii, 2,
3

Tex. R. App. P. 68.4(a)……………………………………………………………..ii

Tex. R. App. P. 68.4(c)…………………………………………………….............vi



               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful because this case presents an issue that

needs to be resolved by this Court. This appeal involves questions of law,

questions of fact, public policy and procedure which cannot be adequately

addressed, analyzed and evaluated through written communication alone. Oral

argument is essential to emphasize the unique characteristics of these questions and

to address the unforeseeable exigencies arising during the Court’s consideration of

this appeal.




                                         vi
                          STATEMENT OF THE CASE


      On November 13, 2012, Appellant, was indicted for driving while

intoxicated. At trial, there was no evidence of failure of field sobriety tests, a

breath test, an accident, swerving from lane to lane or staggering while walking.

These factors of intoxication would be stronger, sufficient evidence for a rational

jury to find beyond a reasonable doubt that a defendant was intoxicated. There

was testimony from a witness, police officer, that there could be other possible

reasons for the indicators of intoxication. The jury convicted Appellant of driving

while intoxicated third or more, and assessed his punishment at 15 years. The

Fourteenth Court of Appeals affirmed the conviction, holding that the evidence

was legally sufficient to prove intoxication. This petition challenges that holding.




                                         vii
                   PROCEDURAL HISTORY OF THE CASE


      On August 4, 2015, the Fourteenth Court of Appeals affirmed Appellant’s

conviction. Gamez v. State, No. 14-14-00203-CR, slip op. at 1-5, (Tex. App.-

Houston [14th Dist.], August 4, 2015, pet. pending).        On August 13, 2015,

Appellant timely filed his motion for rehearing. The Fourteenth Court of Appeals

overruled and denied Appellant’s motion for rehearing on August 18, 2015. On

October 19, 2015, Appellant timely filed this petition for discretionary review with

the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.




                                        viii
                              PDR No. PD-1190-15

                     ________________________________

                     In the Court of Criminal Appeals Texas

                     ________________________________

                         JAIME LEE GAMEZ, Appellant

                                        V.

                            THE STATE OF TEXAS

                      _______________________________

                On Appellant’s Petition for Discretionary Review
                    From the Fourteenth Court of Appeals,
                        Appeal No. 14-14-00203-CR,
                    On Appeal from the 268th District Court
                         Of Fort Bend County, Texas
                         Cause No. 12-DCR-061850
                    _______________________________
                 PETITION FOR DISCRETIONARY REVIEW
                   FOR APPELLANT, JAIME LEE GAMEZ

                     ______________________________________




To The Honorable Justices of the Court of Criminal Appeals:

      Comes now Appellant, Jaime Lee Gamez by, and through his attorney of

record, Michael C. Diaz, and files this petition for discretionary review of the of

the August 4, 2015, decision of the Fourteenth Court of Appeals of Texas in

Gamez v. State, No. 14-14-00203-CR, slip op. at 1-5, (Tex. App.-Houston [14th

                                         1
Dist.], August 4, 2015, pet. pending), and would respectfully show the Court the

following:


                                 GROUND ONE


THE FOURTEENTH COURT OF APPEALS ERRED BY REFUSING TO FIND
 THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
        CONVICTION FOR DRIVING WHILE INTOXICATED



             Reasons to Grant Review in Support of Ground for Review

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter, namely:


Ground One: Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979).

Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication).

Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006).

Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986).

Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).

Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication).

Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987).

Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).


                                        2
In conflict with: Annis v. State, 578 S.W.2d 406 (Tex. Cr. App., 1979).

Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—
Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not designated for
publication).

Hartman v. State, 198 S.W.3d 829 (Tex. App., Corpus Christi-Edinburg 2006).

Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin, 1986).

Kiffe v. State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).

Lovett v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for
publication).

Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort Worth, 1987).

Scott v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).




ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW
                          ONE

      In its August 4, 2015, opinion, the Fourteenth Court of Appeals affirmed

Appellant’s conviction in determining that the evidence is legally sufficient to

prove intoxication.


      This Court should review this ground and review is appropriate under Tex.

R. App. P. 66.3(a), because the Court of Appeals has rendered a decision which is

in conflict with the decisions of another court of appeals on the same matter.



                                          3
        In its opinion, the Fourteenth Court of Appeals responded to Appellant’s

sole point of error by citing and using case law which appears to be in conflict with

case law from other Court of Appeals’ decisions on the same issue, which

Appellant cited and used in his brief. In other words, there is no bright-line rule

for determining intoxication. All the cases conflict with one another in interpreting

or making a determination of intoxication which leaves a jury to speculate.


        As Appellant argued in his brief, although there are cases that indicate the

opinion of an officer is sufficient to prove intoxication, those line of cases, again

include more factors and corroboration, such as: failure of field sobriety tests, a

breath test, an accident, swerving from lane to lane and staggering while walking,

that contributed to the officer’s opinion. None of these factors were present in this

case.


        In its opinion, this Court cited the following cases, to support its holding that

in a DWI prosecution, generally evidence is sufficient to prove intoxication when

the arresting officer opines that a person is intoxicated based on observed cues of

intoxication:


        Annis, Trooper Martin, the arresting officer, testified that he formed an

opinion as to appellant's intoxication prior to and independent of the "breathalyzer"

test. Supporting this independent opinion, Trooper Martin stated that while

                                            4
following appellant's vehicle he noticed the vehicle swerve across a lane-dividing

stripe several times. When Trooper Martin attempted a traffic stop, appellant

pulled into the parking lot of a tavern and parked. Approaching appellant, Trooper

Martin observed that appellant appeared disorderly and that his speech was "mush-

mouthed." Appellant's eyes were red and his breath smelled of alcohol. Further,

Appellant swayed from side to side when walking or standing. Annis v. State, 578

S.W.2d 406 (Tex. Cr. App., 1979).


             In Kiffe, the appellant nearly rear-ended the vehicle in front of him,

but at the last moment again swerved, clipping the rear driver-side door of that

vehicle and then crossed into oncoming traffic and struck the front of the other

vehicle. Both airbags deployed in the other vehicle, which was totaled in the

collision.   Immediately after the collision, the witness, whose car was struck,

stated that Kiffe appeared drunk. According to the witness, Kiffe staggered when

he walked, slurred his speech when he spoke, and had the smell of alcohol on his

breath. Another witness also thought Kiffe was drunk and testified that Kiffe had a

“discombobulated look on his face” and staggered around as if he could not

maintain his balance. He said that Kiffe looked “just ... out of it.” Trooper Terry

observed that Kiffe had an unstable gait, pinpointed pupils, and slurred speech.

Based on these characteristics and his experience as a state trooper, Trooper Terry

concluded that Kiffe was intoxicated. While in route to the hospital, Kiffe told the

                                         5
EMS technicians that he had taken “1/2 a bar of Xanax” the night before the

accident. He denied any alcohol or drug use on the day of the accident. Kiffe v.

State, 361 S.W.3d 104 (Tex. App. -Houston [1 Dist.] 2011).


      In Irion, Officer Olvera of the Austin Police Department observed

appellant's car weaving from lane to lane on Research Boulevard. The vehicle

continued weaving after turning onto Burnet Road, while traveling 30 to 35 miles

per hour in a 45 miles-per-hour zone. After stopping appellant's car, Officer Olvera

asked her to exit her vehicle. He observed that her eyes were bloodshot, her breath

smelled of alcohol, and she swayed from side to side. Appellant then performed

poorly on several field sobriety tests. Irion v. State, 703 S.W.2d 362 (Tex.App.-

Austin, 1986).


      In Lovett, the officer administered a horizontal-gaze nystagmus (HGN) field-

sobriety test on the appellant and concluded that appellant exhibited six clues of

intoxication.    The officer also attempted to administer a walk-and-turn field

sobriety test and had explained the instructions for the test to appellant. Appellant

expressed a desire to walk along a painted yellow line in the parking lot instead of

walking along an imaginary line as the officer instructed. Appellant also expressed

a desire to record the test with his cell phone and removed the phone from his

pocket to film the test. Appellant refused the officer’s instructions to put his phone


                                          6
away to perform the test. The officer characterized appellant’s demeanor as

belligerent. The officer placed appellant under arrest, believing appellant to be

intoxicated based on appellant’s demeanor, bloodshot eyes, slurred speech,

unsteadiness, and the odor of alcohol on appellant’s breath. Lovett v. State, No.

14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—Houston [14th Dist.] June

25, 2013, no pet.) (mem. op., not designated for publication).


      In Cloud, Appellant was driving a truck on Interstate Highway 10 on

January 13, 2007, when he passed Officer Charles Beckworth. Officer Beckworth

testified that he had detained another driver for a traffic violation and was exiting

his vehicle when appellant came by me in his truck and almost hit me. I had to

lean up against the patrol car. Officer Beckworth finished writing the citation,

pursued appellant, and pulled him over. When he approached the driver’s side

window of appellant’s truck, he smelled alcohol and saw that appellant had red

eyes and flushed skin. Officer Beckworth asked appellant to exit the vehicle, and

when appellant did so he appeared unsteady. Officer Beckworth testified that

appellant’s speech was slurred. Officer Beckworth told appellant to spit out his

chewing gum, and when appellant did so, Officer Beckworth smelled alcohol on

his breath. Officer Beckworth also testified that appellant tore off the bracelet he

was wearing, which appeared to be a paper bracelet allowing admission to a bar or

nightclub. Appellant stated he had come from the Katy Mills Mall. Officer

                                         7
Beckworth testified that there was only one place open at that hour at the Katy

Mills Mall, a nightclub called Midnight Rodeo. Appellant refused to perform any

field sobriety tests at the site of the stop.    Appellant later refused to take a

breathalyzer test. Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *2

(Tex. App.—Houston [14th Dist.] June 24, 2008, pet. ref’d) (mem. op., not

designated for publication).


      Appellant relied upon Annis, Kiffe and Irion and the following in his brief to

distinguish these cases because of the lack of more factors and corroboration which

are sufficient to prove intoxication.


      In Scott, the State's evidence in this case was given by the arresting officer,

Charles Marsh. He testified that he was patrolling on Stemmons Freeway in Dallas

on February 14, 1994, at about 11:45 p.m., when he observed an automobile driven

by Scott swerve back and forth three or four times, straddling the centerline of its

lane of traffic. He pulled the car over to investigate the offense of failure to

maintain a single lane. He asked Scott if he had been drinking, and Scott said he

had "two or three." The officer testified that Scott's eyes were red, he smelled of

alcohol, there was a slight slur in his speech, and he was unsteady on his feet.

Marsh said he had Scott perform a straight-line test, and that Scott lost his balance




                                          8
and "fell off to the side" two or three times. Marsh gave Scott no other test. Scott

v. State, 914 S.W.2d 628 (Tex.App.-Texarkana, 1995).


             In Martin, the officer testified that appellant stumbled as he got out of

his car, he staggered and swayed as he stood, his speech was slurred and his tongue

was thick, his eyes bloodshot and watery, and his hand-eye coordination was

sluggish. The officer also testified that appellant failed three field sobriety tests

conducted at the scene of the arrest. Appellant failed the horizontal gaze and

astigma test, he could not count from one to four on his fingers, and he could not

recite the alphabet out loud. While in jail, Appellant consented to taking the

intoxilyzer test. The test was administered to Appellant at approximately 7:00 p.m.

the same day. The test results indicated that Appellant's blood alcohol content was

0.21%, over twice the legal limit. Martin v. State, 724 S.W.2d 135 (Tex.App.-Fort

Worth, 1987).


      In Hartman, Trooper Phillip Gonzales stopped Hartman after radar detected

she was driving eighty-three miles per hour on an interstate highway. Trooper

Gonzales approached Hartman's vehicle and detected a strong odor of alcohol

emanating from Hartman and her vehicle. He observed a nearly-empty bottle of

vodka on the front seat of her vehicle.2 Hartman admitted to Trooper Gonzales that

she last consumed a few drinks, "something stronger than beer," at about 10:30


                                          9
p.m. After Hartman failed the standard field sobriety tests, Trooper Gonzales

arrested her for driving while intoxicated. Hartman v. State, 198 S.W.3d 829 (Tex.

App., Corpus Christi-Edinburg 2006).


       In this case, there is no evidence of failure of field sobriety tests, a breath

test, an accident, swerving from lane to lane or staggering while walking. These

factors of intoxication would be stronger, sufficient evidence for a rational jury to

find beyond a reasonable doubt that a defendant was intoxicated.


       In addition, the only possible indicators of intoxication according to Officer

Gonzales’ testimony were: the Appellant was driving the wrong way on the

freeway, (RR 4 at 27), unsteady and unbalanced (RR 4 at 28), red bloodshot eyes,

(RR 4 at 29), possible urine on Appellant, (RR 4 at 25), could smell a strong odor

of alcoholic beverage emanating from the Appellant’s breath and person, (RR 4 at

16), the Appellant refused field sobriety tests, (RR 4 at 18), the Appellant refused

the blood test, (RR 4 at 22) and bottles of beer inside Appellant’s vehicle. (RR 4 at

23).


       Morales testified that the only indicators that the Appellant was intoxicated

were: a little dazed and confused, speech was very slurred, appeared to have

urinated on himself and he refused to perform field sobriety tests Officer Gonzales

had requested. (RR 4 at 80).

                                          10
      However, on cross examination of Gonzales, he conceded that there could be

other possible reasons for the indicators of intoxication. In addition, Morales said

that it is entirely possible that the wet spot on the Appellant’s pants came from that

beer possibly spilling when it was sitting in his lap. Morales had never met the

Appellant before that night and never heard him talk before yet didn't have a hard

time understanding him that night. Morales said that a mistake was made by not

drawing the Appellant’s blood because of his prior convictions. (RR 4 at 85-89).


      It is clear from the argument, authorities, and statements from the record that

this Court has committed error in its judgment. This Court draws an incorrect

conclusion in that none of those particular facts are required for a rational jury to

find beyond a reasonable doubt that a defendant was intoxicated. Reviewing the

evidence discussed above and the entire record, a rational jury could not have

found that appellant was intoxicated without more factors and corroboration.




                                         11
                              PRAYER FOR RELIEF


       WHEREFORE, PREMISES CONSIDERED, Appellant, Jaime Lee Gamez,

prays that this Court grant the Petition for Discretionary Review for Appellant,

order briefing on this cause, and set it for submission at the earliest possible date.

Moreover, upon submission and review of the appellate record and the briefs and

arguments of counsel, the Court issue an opinion resolving this conflict so that the

bench and bar of this state will know how to address and dispose of similar issues

in the future.


                                                    Respectfully submitted,


                                                    /s/Michael C. Diaz
                                                    Michael C. Diaz
                                                    20228 Hwy. 6
                                                    Manvel, Texas 77578
                                                    Telephone: 281-489-2400
                                                    Facsimile: 281-489-2401
                                                    State Bar No. 00793616
                                                    Attorney for Appellant




                                         12
                     CERTIFICATE OF COMPLIANCE


      Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing

document, Appellant’s Petition for Discretionary Review, filed on October 19,

2015, has 3336 words, based upon the word count under Microsoft Word.


                                           /s/ Michael C. Diaz
                                           Michael C. Diaz
                                           20228 Hwy. 6
                                           Manvel, Texas 77578
                                           Telephone: 281-489-2400
                                           Facsimile: 281-489-2401
                                           Texas Bar No. 00793616
                                           E-mail: mjoeldiaz@sbcglobal.net
                                           Attorney for Appellant




                                      13
                         CERTIFICATE OF SERVICE

      In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a

true and correct copy of the foregoing Petition for Discretionary Review has been

served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422

Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 19th day of

October, 2015.


                                                        /s/Michael C. Diaz
                                                        Michael C. Diaz




                                       14
APPENDIX




   15
16
Affirmed and Memorandum Opinion filed August 4, 2015.




                                          In The

                        Fourteenth Court of Appeals

                                  NO. 14-14-00203-CR

                           JAIME LEE GAMEZ, Appellant

                                            V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 268th District Court
                               Fort Bend County, Texas
                        Trial Court Cause No. 12-DCR-061850

                     MEMORANDUM OPINION


      A jury found appellant Jaime Lee Gamez guilty of felony driving while
intoxicated (DWI), enhanced by a prior felony DWI, and assessed punishment at fifteen
years’ confinement. See Tex. Penal Code Ann. §§ 12.42(b), 49.04, 49.09(b)(2). In two
issues, appellant contends (1) the evidence is legally insufficient, and (2) the trial court
erred by denying appellant’s motion to suppress. We affirm.

                           I.    SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends the evidence is legally insufficient to prove
he was intoxicated. Appellant argues that because there is no evidence his blood
alcohol concentration was 0.08 or more, the “only issue is whether [he] did not have his
normal use of his mental or physical faculties due to alcohol.” See Tex. Penal Code
Ann. § 49.01(2) (defining “intoxicated”).

      “In determining whether the evidence is legally sufficient to support a conviction,
a reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational fact finder could have found the essential elements of the crime
beyond a reasonable doubt.” Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014) (quotation omitted); see also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).
In reviewing historical facts that support conflicting inferences, we must presume that
the jury resolved any conflicts in the State’s favor, and we must defer to that resolution.
Whatley, 445 S.W.3d at 166. “[A]n inference is a conclusion reached by considering
other facts and deducing a logical consequence from them.” Id. (alteration in original)
(quotation omitted).

      In a DWI prosecution, generally evidence is sufficient to prove intoxication when
the arresting officer opines that a person is intoxicated based on observed cues of
intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]
1979) (sufficient evidence based on arresting officer’s opinion testimony); Kiffe v. State,
361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“Also, 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 DW[I].”); accord
Irion v. State, 703 S.W.2d 362, 364 (Tex. App.—Austin 1986, no writ); see also Lovett
v. State, No. 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—Houston [14th
Dist.] June 25, 2013, no pet.) (mem. op., not designated for publication); Cloud v. State,
No. 14-07-00847-CR, 2008 WL 2520826, at *2 (Tex. App.—Houston [14th Dist.] June

                                            2
24, 2008, pet. ref’d) (mem. op., not designated for publication).

       Here, two police officers stopped appellant because he was driving the wrong
way on a freeway. Officer Benny Gonzalez opined that appellant was intoxicated
because appellant (1) had a strong odor of alcohol emanating from his person and
breath; (2) did not realize he was driving the wrong way on the freeway; (3) was
unsteady on his feet and unbalanced; (4) had red, bloodshot eyes; (5) appeared to have
urinated on himself, which is common for DWI suspects; and (6) refused field sobriety
tests and a blood test. There was also an open bottle of beer on the floorboard of the
driver’s side of appellant’s vehicle. On cross-examination, Gonzalez acknowledged that
appellant did not stumble or fall, and it was possible the wet spot on appellant’s pants
was from a spilled beer rather than urine. Sergeant Marty Morales also testified that he
believed appellant was intoxicated, and appellant (1) had slurred speech; (2) was dazed
and confused; and (3) urinated on himself.                  On cross-examination, Morales
acknowledged that it was a mistake to not have tested appellant’s blood for alcohol.

       Appellant cites six cases in which various appellate courts affirmed convictions
for DWI,1 and he attempts to distinguish those cases because there is no evidence that
appellant failed field sobriety tests or a breath test, was in an accident or swerved from
lane to lane, or staggered while he walked. However, none of those particular facts is
required for a rational jury to find beyond a reasonable doubt that a defendant was
intoxicated. Reviewing the evidence discussed above and the entire record, a rational
jury could have found that appellant was intoxicated. See, e.g., Jackson v. State, No.
14-13-00170-CR, — S.W.3d —, 2015 WL 3459521, at *2–3 (Tex. App.—Houston
[14th Dist.] May 28, 2015, no pet. h.) (sufficient evidence of intoxication existed when

       1
          See Annis, 578 S.W.2d 406; Kiffe, 361 S.W.3d 104; Hartman v. State, 198 S.W.3d 829 (Tex.
App.—Corpus Christi 2006, pet. struck); Scott v. State, 914 S.W.2d 628 (Tex. App.—Texarkana 1995,
no pet.); Martin v. State, 724 S.W.2d 135 (Tex. App.—Fort Worth 1987, no pet.); Irion, 703 S.W.2d
362.

                                                3
the defendant wore disorderly clothing and had an unsteady gait and stance, incoherent
speech, red and glassy eyes, and a combative behavior; the defendant’s breath smelled
of alcohol; the defendant refused a breath test and field sobriety tests; a fresh alcoholic
beverage was found in the vehicle; and a police officer opined that the defendant was
intoxicated); Kiffe, 361 S.W.3d at 106, 108–09 (sufficient evidence of intoxication
existed when an officer opined that the defendant was intoxicated because he observed
slurred speech, unstable gait, and pinpointed pupils, and the defendant was swerving in
and out of his lane, struck another vehicle, and drove into oncoming traffic; officer did
not conduct a field sobriety test or smell alcohol); see also Lovett, 2013 WL 3243363, at
*3 (“As a general rule, the testimony of a peace officer that a person is intoxicated
provides sufficient evidence to establish the element of intoxication.”). The evidence is
legally sufficient to prove intoxication.

      Appellant’s first issue is overruled.

                               II.    MOTION TO SUPPRESS

      In his second issue, appellant contends the trial court abused its discretion by
denying appellant’s motion to suppress. He contends that the officers “lacked any
probable cause to arrest [him] for driving while intoxicated.” Appellant appears to be
urging that an unlawful arrest occurred when the officers stopped appellant’s vehicle,
ordered him out at gunpoint, and briefly handcuffed him. Then, the officers uncuffed
appellant and began questioning him to investigate a possible DWI. The officers asked
appellant to take field sobriety tests several times, and after appellant refused to perform
the tests, the officers arrested him for DWI.

      However, appellant’s counsel concedes that the undisputed facts support
appellant being “under arrest at the moment Gonzales drew his gun for the offense of
driving the wrong way.” See Tex. Transp. Code Ann. § 545.063 (operator shall drive
on the right roadway of a divided freeway); id. § 543.001 (peace officer may arrest
                                                4
person violating the rules of the road). The test for probable cause for a warrantless
arrest is “whether at the moment of the arrest the facts and circumstances within the
officer’s knowledge and of which he had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the arrested person had committed
or was committing an offense.” State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim.
App. 2002) (quotation omitted). Here, the officers observed appellant violating the
rules of the road by driving on the wrong side of the freeway. The trial court would not
have abused its discretion in concluding that the officers had probable cause to arrest
appellant at the beginning of the traffic stop, and so an arrest occurring at that time
would have been lawful.2

       Appellant’s second issue is overruled.

                                          III.      CONCLUSION

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




                                              /s/        Sharon McCally
                                                         Justice



Panel consists of Justices Boyce, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).



       2
         To the extent appellant is complaining about his arrest at the conclusion of the traffic stop, we
note that the trial court in fact suppressed all verbal statements obtained after appellant unequivocally
refused the field sobriety test for the first time.
        Appellant limits his argument on appeal to the issue of probable cause. He does not contend, as
trial counsel did, that he was subject to a custodial interrogation without receiving adequate Miranda
warnings.

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