                          NUMBER 13-11-00504-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOHN GARCIA JR.,                                                             Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                          MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant, John Garcia Jr., appeals his conviction for felony driving while

intoxicated (“D.W.I.”), repeat felony offender, a second-degree felony. See TEX. PENAL

CODE ANN. §§ 49.04, 49.09, 12.42 (West 2011). After a jury trial, appellant was found

guilty and the trial court sentenced appellant to a term of fifteen years of confinement in

the Texas Department of Criminal Justice, Institutional Division, and ordered him to pay
a $7,000 fine. By two issues, appellant argues (1) the evidence presented at trial was

legally insufficient to prove appellant was operating a motor vehicle and (2) the

evidence presented at trial was factually insufficient to prove appellant was operating a

motor vehicle. We affirm.

                 I.     FACTUAL AND PROCEDURAL BACKGROUND

      On the night of January 5, 2011, appellant was involved in a single vehicle

accident in a residential neighborhood in Aransas Pass, Texas.        Sergeant Antonio

Davila of the Aransas Pass Police Department was the first officer to arrive on the

scene. He found a sport utility vehicle crashed through a fence and stopped up against

a tree in a residential backyard. Surveying the scene, Sergeant Davila found appellant

on the passenger side of the vehicle assisting Larry Morgan, who had suffered injuries

to his chest as a result of the collision. Sergeant Davila testified that it was evident

appellant was intoxicated because his speech was slurred, his eyes were bloodshot,

and his breath had a very strong odor of alcohol.

      Officer Jan Raska, also of the Aransas Pass Police Department, testified as to

the damaged condition of the wrecked vehicle. Officer Raska stated that the majority of

the damage inflicted on the vehicle was to the front portion of the vehicle and slightly

towards the driver’s side. He also testified that the vehicle’s steering wheel was bent

forward towards the front dashboard.

      Javier Navarro was a neighbor and witness to the immediate aftermath of the

collision. Navarro testified that he heard “a big bang” and that his house shook as a

result of the accident. As Navarro went outside to investigate what had happened, he

observed appellant behind the wheel on the driver’s side of the vehicle. As Navarro



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was heading towards the crashed vehicle, he witnessed appellant exit the driver’s side

door and walk over to the passenger side of the vehicle to assist Morgan. Navarro

identified appellant in court as the driver of the vehicle. Navarro further testified that he

overheard appellant telling Sergeant Davila that he was not the driver of the vehicle. At

this point, Navarro approached Sergeant Davila and informed him that he had seen

appellant behind the wheel and that appellant was the driver.

       Holly Olivarez, another resident of the neighborhood, also witnessed what

occurred immediately after the accident. She testified that appellant was the driver of

the vehicle. Olivarez stated that she too heard a loud crash occur outside of her home

and immediately went outside to see what had transpired. Olivarez testified that when

she saw the vehicle, there were two men inside it and that appellant was seated behind

the wheel on the driver’s side of the vehicle. Olivarez identified appellant in open court

as the driver of the vehicle.     Olivarez further testified that when she went to help

Morgan, whom she described as the passenger, she could smell the strong odor of

alcohol four feet away from the vehicle.

       Sergeant Davila attempted to administer a horizontal eye nystagmus test, but

was unable to successfully administer the eye test or subsequent standardized field

sobriety tests because of appellant’s failure to follow directions and uncooperative

nature. Appellant subsequently refused to take part in any more tests and told Sergeant

Davila to take him to jail. Appellant was placed under arrest.

       Officer Mark Flores spoke with appellant about the accident at the scene of the

accident and at the police station. At the scene, appellant told him that, “I was in the

vehicle, but I wasn’t the driver.” Officer Flores testified that later on, when appellant was



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in a holding cell at the police station speaking to him, appellant would “reflect back on

being the driver,” and then subsequently state that he in fact was not the driver, never

making sense as to whether he was the driver or not.

        Appellant was later taken to the Care Regional Medical Center in Aransas Pass

for a mandatory blood draw.1 Appellant’s blood was drawn approximately an hour after

officers had arrived on scene of the accident.2 The blood specimen was delivered to

the Texas DPS crime laboratory in Corpus Christi, Texas where, upon analysis, it was

determined that appellant’s blood alcohol content was .22 grams of alcohol per 100

milliliters of blood, nearly three times the legal limit.

                                          II.      DISCUSSION

        By his two issues, appellant argues that the evidence presented at trial is legally

and factually insufficient to prove he was operating a motor vehicle. 3                        Appellant

emphasizes that of the two neighbors who testified at trial, Navarro and Olivares,

neither saw him drive the vehicle, nor saw what happened immediately after the

collision; rather they only saw the events that occurred several moments after the crash

occurred. Appellant also emphasizes that the injuries to the chest suffered by Morgan,



        1
          Section 724.012 of the Texas Transportation Code lists several situations in which a person
must give a breath or blood specimen if arrested for D.W.I. See TEX. TRANSP. CODE ANN. § 724.012(b),
(c) (West. Supp. 2011).
        2
          According to the Aransas Pass Police Department call log, the first call received with respect to
the accident in question was received at 9:28 p.m. According to the blood specimen routing report filed in
regards to the mandatory blood draw, the blood draw was performed at 10:40 p.m.
        3
          During the punishment phase of trial, appellant admitted during testimony to being both the
operator of the vehicle and intoxicated while driving on the night of January 5, 2011. However,
appellant’s admission of guilt during the punishment phase of trial does not waive his right to appeal the
sufficiency of evidence at the guilt-innocence phase of trial. See Resendez v. State, 160 S.W.3d 181,
184 (Tex. App.—Corpus Christi 2005, no pet.) (holding that a defendant admitting guilt during the
punishment phase of trial does not waive the right to bring a sufficiency claim on appeal); see also
Jarmon v. State, 263 S.W.3d 25, 29–30 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

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the owner of the vehicle, match up with the damage to the bent steering wheel, and is

evidence that Morgan was the actual operator of the vehicle.

      We review both a legal sufficiency challenge and a factual sufficiency challenge

under the same Jackson v. Virginia sufficiency standard. See Jackson v. Virginia, 433

U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010)

(plurality op.); Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010,

pet ref’d). In Brooks, the Court of Criminal Appeals eliminated factual sufficiency review

of the elements the State is required to prove beyond a reasonable doubt and stated “[i]t

bears emphasizing that a rigorous and proper application of the Jackson v. Virginia

legal sufficiency standard is as exacting a standard as any factual sufficiency standard

(especially one that is ‘barely distinguishable’ or indistinguishable from a Jackson v.

Virginia legal-sufficiency standard).”   Brooks, 323 S.W.3d at 905–06.      Thus, we no

longer refer separately to legal and factual sufficiency review. See id.

      Under the Jackson standard, when conducting a sufficiency review, a reviewing

court must ask whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt—not whether it believes the evidence at trial

established guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894; Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). In doing so, we assess all of the

evidence in the light most favorable to the prosecution. Laster, 275 S.W.3d at 517

(quoting Jackson, 443 U.S. at 319). We must presume that the fact finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution. Jackson,

443 U.S. at 326. The jury will resolve questions as to the credibility of witnesses and

the weight to be given to their testimony. State v. Mercier, 164 S.W.3d 799, 813–14



                                            5
(Tex. App.—Corpus Christi 2005, pet ref’d); Moody v. State, 830 S.W.2d 698, 699–700

(Tex. App.—Houston 1992, pet ref’d). This Court will not overturn a verdict due to

insufficiency unless the supporting evidence is irrational or unable to support proof

beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.

1991) (en banc).

        We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id. A person commits the offense

of driving while intoxicated if the person is intoxicated while operating a motor vehicle in

a public place. TEX. PENAL CODE ANN. § 49.04(a) (West 2011).4

        In D.W.I cases, the state may rely solely on circumstantial evidence to establish

a conviction, and in order for that evidence to be sufficient, there must be a temporal

link between the act of driving and defendant’s intoxication. Kuciemba v. State, 310

S.W.3d 460, 462 (Tex. Crim. App. 2010). Circumstantial evidence is as probative as

direct evidence when establishing guilt, and the appellate review of circumstantial

evidence is the same as used for direct evidence; therefore, a reviewing court draws no



        4
           Appellant does not contest that he had the requisite prior convictions to satisfy the felony
enhancements set forth in Texas Penal Code Sections 49.09(b)(2) and 12.42(a). At the punishment
phase of the trial, appellant admitted to three prior D.W.I. convictions, including a third degree felony
D.W.I. conviction from 2009. Therefore, the only issue presented is whether the evidence shows
appellant was operating a motor vehicle while intoxicated.

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distinction between the two. See Kuciemba, 310 S.W.3d at 462; Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004).

       After reviewing the evidence in the appellate record, we conclude a rational jury

could have found beyond a reasonable doubt that appellant was the driver of the vehicle

at the time of the accident. See Jackson, 443 U.S. at 326. Navarro and Olivarez both

testified that they witnessed appellant behind the wheel of the vehicle shortly after the

accident had occurred. Mr. Navarro proffered testimony that he saw appellant exit the

driver’s side of the vehicle, and walk around the vehicle in an attempt to help remove

Morgan from the passenger side of the vehicle. Both Navarro and Olivarez identified

appellant in court as the driver of the vehicle.

       While in the holding cell at the Aransas Pass Police Station, appellant went back

and forth stating that he was and was not the driver.         A fact-finder may infer a

consciousness of guilt from a defendant’s changing story about the crime and the

surrounding circumstances. Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—

Fort Worth 1993, pet. ref’d). “A ‘consciousness of guilt’ is perhaps one of the strongest

kinds of evidence of guilt.” Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus

Christi 1993, pet. ref’d.) (quoting Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—

Austin 1990, no pet.)). “It is consequently a well accepted principle that any conduct on

the part of a person accused of a crime subsequent to its commission, which indicates a

‘consciousness of guilt,’ may be received as a circumstance tending to prove that he

committed the act with which he is charged.” Torres, 794 S.W.2d at 598.




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       The jury at trial could have reasonably inferred from appellant’s changing story

that he lied about not being the driver of the vehicle because he had something to hide.

See Couchman, 3 S.W.3d at 164. Appellant’s sufficiency issues are overruled.

                                   III.    CONCLUSION

      We affirm the trial court’s judgment.




                                                  Gregory T. Perkes
                                                  Justice


Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of July, 2012.




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