                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-313-CR


ALLEN CLAUDE SHULER                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      A jury convicted appellant Allen Claude Shuler of driving while intoxicated

(DWI). See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In three points,

Shuler argues that his conviction should be reversed because the evidence is

legally and factually insufficient to support the conviction and because the trial



      1
          … See Tex. R. App. P. 47.4.
court erred by overruling his objection to an allegedly improper commitment

question during voir dire. We affirm.

                               Background Facts

       At about 1 a.m. on March 18, 2004, Officer John Harding of the North

Richland Hills Police Department (NRHPD) saw Shuler use his car’s brakes on

and off continuously and make an illegal right turn by signaling the turn at a

stop sign, which was not outside of the required one hundred feet prior to

making the turn. Officer Harding turned on his patrol car’s overhead emergency

lights. Officer Harding testified that Shuler did not pull over immediately, but

drove for approximately a thousand feet before pulling over and striking a curb.

Shuler testified that he pulled over immediately after Officer Harding initiated

his lights and did not hit the curb.

       Upon approaching Shuler’s car, Officer Harding noticed Shuler’s watery

eyes, smelled alcohol on his breath, and asked him if he had been drinking.

Shuler admitted to having two beers while at work. Officer Harding asked

Shuler to step out of his car so that Officer Harding could conduct field sobriety

tests. 2   Shuler showed four clues for intoxication on the horizontal-gaze-




       2
       … Officer Harding completed forty hours of field sobriety training through
the National Highway Traffic Safety Administration in 2000. He has had further
training on field sobriety tests since that time.

                                        2
nystagmus test, four clues on the walk-and-turn test, and four clues on the one-

leg-stand test. Based on Shuler’s driving errors and on the field sobriety tests,

Officer Harding believed Shuler to be intoxicated and arrested him.

      At a city jail, at about 2 a.m., NRHPD Officer Daniel Bohanon asked

Shuler to give breath samples into an Intoxilyzer. Shuler provided two breath

samples that registered alcohol concentrations of .123 and .126.

      At the time that he gave Shuler the Intoxilyzer test, Officer Bohanon was

certified by the Tarrant County Medical Examiner’s Office to perform an

Intoxilyzer. The State presented extensive evidence through a forensic chemist

about the reliability and scientific theory of Intoxilyzers in general and of the

specific Intoxilyzer that Shuler used. The chemist testified that an individual’s

blood alcohol level does not typically change significantly in a forty-five minute

time span (which is close to the time between Shuler’s operation of his car and

the breath samples he provided).

      The State charged Shuler with DWI, alleging that Shuler had been

intoxicated while driving because he either did not have the normal use of his

mental or physical faculties because of alcohol or he had a blood alcohol

concentration of at least 0.08. Shuler pled not guilty before a jury in July

2008. At the end of the trial, the jury found Shuler guilty, and the trial court

sentenced him to ninety days’ confinement that was suspended for twenty-four

                                        3
months under several conditions of community supervision. Shuler filed his

notice of appeal.

                            Evidentiary Sufficiency

      A person commits DWI if “the person is intoxicated while operating a

motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a); Harkins v.

State, 268 S.W.3d 740, 748 (Tex. App.— Fort Worth 2008, pet. ref’d); see

also Paschall v. State, 285 S.W.3d 166, 174 (Tex. App.—Fort Worth 2009,

pet. ref’d) (“The elements of [DWI] are (1) the defendant, (2) operated, (3) a

motor vehicle, (4) while intoxicated, and (5) on or about the date alleged in the

State’s charging instrument.”).       The penal code defines “intoxicated”

alternatively as “not having the normal use of mental or physical faculties by

reason of the introduction of alcohol . . . into the body” or as “having an

alcohol concentration of 0.08 or more.” Tex. Penal Code Ann. § 49.01(2)

(Vernon 2003); McCown v. State, 192 S.W.3d 158, 164 (Tex. App.—Fort

Worth 2006, pet. ref’d). Either definition of intoxication may be sufficient to

support a DWI conviction, even when there is evidence weighing against the

other definition.   See Matula v. State, 972 S.W .2d 891, 893–94 (Tex.

App.—Corpus Christi 1998, no pet.) (holding that a blood alcohol concentration

of .129 was sufficient to support intoxication despite testimony from

eyewitnesses that the defendant was sober).

                                       4
Legal sufficiency

       In his first point, Shuler asserts that the evidence is legally insufficient to

support his conviction. In reviewing the legal sufficiency of the evidence, we

view all of the evidence in the light most favorable to the prosecution in order

to 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).              This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at

778.

       The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown

v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S.

Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).




                                          5
      Shuler testified at trial that he had been drinking before he drove. Officer

Harding testified that he smelled alcohol on Shuler and that Shuler had glassy

eyes and showed four out of six clues for intoxication on each of the three

sobriety tests Officer Harding administered after pulling Shuler over. Shuler

provided breath samples registering alcohol concentrations of .123 and .126.

      After reviewing the evidence in the light most favorable to the verdict, we

conclude that a rational juror could have found that Shuler was intoxicated

while he drove as charged by the State. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789. Accordingly, we overrule Shuler’s first point.

Factual sufficiency

      In his second point, Shuler asserts that the evidence is factually

insufficient to support his conviction. When reviewing the factual sufficiency

of the evidence to support a conviction, we view all the evidence in a neutral

light, favoring neither party. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim.

App. 2008), cert. denied, 129 S. Ct. 1037 (2009); Watson v. State, 204

S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence

supporting the conviction, although legally sufficient, is nevertheless so weak

that the factfinder’s determination is clearly wrong and manifestly unjust or

whether conflicting evidence so greatly outweighs the evidence supporting the

conviction that the factfinder’s determination is manifestly unjust. Lancon v.

                                        6
State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008); Watson, 204 S.W.3d

at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and

preponderance of all the evidence, although legally sufficient, contradicts the

verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

                                        7
factfinder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

      In addition to the facts detailed above, Officer Bohanon testified that he

watched Shuler for fifteen minutes prior to taking the breath samples and

ensured that Shuler had nothing in his mouth, as required for the proper

administration of the Intoxilyzer test. Shuler disputed that he struck the curb

upon being pulled over by Officer Harding and that Officer Bohanon observed

him for a full fifteen minutes before Shuler provided breath samples, and he

testified that he had tobacco in his mouth when he took the test.3 He testified

that he took the breath test because he “had no reason to think that [he] was

intoxicated.”   Officer Harding testified that on the night of Shuler’s arrest,

Shuler’s speech was coherent and normal. And Officer Harding agreed that

there were some portions of the field sobriety tests that Shuler either passed

or failed with only minor deviations from Officer Harding’s instructions.




      3
       … We will defer to the jury’s implicit resolution in the State’s favor of the
conflicts between Officer Bohanon’s testimony and Shuler’s testimony. See
Lancon, 253 S.W.3d at 704–05 (explaining that a court of appeals “must be
cognizant of the fact that a jury has already passed on the facts and must give
due deference to the determinations of the jury”); Johnson, 23 S.W.3d at 8–9.

                                         8
      However, based on the other evidence described above regarding Shuler’s

driving pattern, his smell of alcohol, his glassy eyes, his general performance

on the field sobriety tests, and his breath samples, we conclude that the

evidence supporting the conviction is not so weak, nor the contrary evidence

so overwhelming, that the jury’s verdict is clearly wrong or manifestly unjust.

Watson, 204 S.W.3d at 414–15, 417. Therefore, we hold that the evidence

is factually sufficient to support the jury’s conclusion that Shuler was

intoxicated while driving, and we overrule Shuler’s second point.

                             Commitment Question

      In his third point, Shuler asserts that the trial court erred by allowing the

State’s prosecutor to ask the jury an allegedly improper commitment question

during voir dire:

      If at the end of the case you’ve heard all the evidence and [the
      State has] proved to you that there was a breath test, the breath
      test was a 0.08 or higher, and you believe beyond a reasonable
      doubt that the Intoxilyzer machine was working that day, can you
      find the defendant guilty?

Shuler’s counsel objected to the question by stating,

      [I]t is a misinstruction as to what the law in this case is. The law
      in the case has nothing to do with jurors contracting to believe in
      the reliability of an Intoxilyzer 5000. . . . [W]e’re asking jurors to
      contract so I object because it’s a misstatement of the law, in
      addition to being a fact specific commitment question.




                                        9
In his own voir dire examination, Shuler’s counsel explained his objection to the

prosecutor’s question by stating, “The law says a person’s intoxicated if, when

they are driving, they have an alcohol concentration of .08 in their body.

That’s what the law says. The law doesn’t say if you think a machine is run

right or wrong that the person’s guilty.” Shuler similarly contends on appeal

that the question is improper because while having a valid breath test of 0.08

or higher proves intoxication, it does not support guilt by itself, because it does

not relate to whether a defendant was operating a motor vehicle at the time of

the intoxication.4

Standard of review

      The trial court has broad discretion over the process of selecting a jury.

Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied,

489 U.S. 1040 (1989); Ewing v. State, 157 S.W.3d 863, 866 (Tex. App.—Fort

Worth 2005, no pet.).      The propriety of a particular voir dire question is

reviewed under an abuse of discretion standard. Barajas v. State, 93 S.W.3d

36, 38 (Tex. Crim. App. 2002); Allridge, 762 S.W.2d at 167; Vann v. State,

216 S.W.3d 881, 884 (Tex. App.—Fort Worth 2007, no pet.).


      4
        … In his brief, Shuler specifies that he was “entitled to challenge the
improper question because it erroneously committed the jury to convict—not
merely find intoxication—if [there was a breath test of 0.08 or higher and the
Intoxilyzer was working properly].”

                                        10
Applicable law and analysis

      A commitment question is one that commits a prospective juror to

resolve, or to refrain from resolving, an issue a certain way after learning a

particular fact. Standefer v. State, 59 S.W.3d 177, 179–80 (Tex. Crim. App.

2001). It is generally improper to ask a commitment question during voir dire

because it amounts to an improper attempt to bind a juror. See Lydia v. State,

117 S.W.3d 902, 905 (Tex. App.—Fort Worth 2003, pet. ref’d). But some

commitment questions are proper. Id.; see Standefer, 59 S.W.3d at 181–83.

      For instance, counsel may ask prospective jurors whether they can follow

the law when it requires a certain type of commitment from jurors and when

the question states only the facts required to establish a challenge for cause.

Standefer, 59 S.W.3d at 181–82 (illustrating that counsel can ask jurors

whether they can consider probation when the law requires the jurors to be able

to consider the full range of punishment); Vann, 216 S.W.3d at 884–85.

However, when “the law does not require the commitment, a commitment

question is invariably improper.” Standefer, 59 S.W.3d at 181.

      Thus, the determination of whether a question is an improper

commitment question is a three-part test: (1) is the question a commitment

question; (2) could a possible answer to the question produce a valid challenge

for cause because it would show that a juror would not follow the law; and (3)

                                      11
does the question only contain the facts required to make such a challenge.

See Tijerina v. State, 202 S.W.3d 299, 302 (Tex. App.—Fort Worth 2006, pet.

ref’d) (op. on reh’g).   “[T]he purpose for prohibiting improper commitment

questions by either the State or the defendant is to ensure that the jury will

listen to the evidence with an open mind—a mind that is impartial and without

bias or prejudice—and render a verdict based upon that evidence.” Sanchez v.

State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).

      The law does not require a jury to convict a defendant for DWI upon the

showing of only intoxication through a properly recorded breath test exceeding

0.08; the State must also prove that the intoxication occurred at the time the

defendant operated a vehicle. See Tex. Penal Code Ann. § 49.04(a); State v.

Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005) (explaining that

Intoxilyzer results indicate consumption of alcohol and make it more probable

that a defendant was intoxicated at the time of driving); Zavala v. State, 89

S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.) (explaining that

there must be a link between driving and intoxication). In other words, as the

court of criminal appeals has explained,

      To prove the element of intoxication in a prosecution for the
      offense of driving while intoxicated, the State must offer proof
      beyond a reasonable doubt as to that element. To be sure, if the
      State relies upon the [numeric alcohol concentration] definition of
      intoxication, then such proof will normally appear in the form of a

                                      12
      chemical test showing the alcohol concentration in a defendant’s
      body near the time of the offense. However, a conviction will not
      necessarily follow from the offer of such a test. First, the trier of
      fact must still be convinced beyond a reasonable doubt that the
      chemical test provides trustworthy evidence of alcohol
      concentration in a defendant’s breath, blood or urine. Second, the
      jury must still be convinced beyond a reasonable doubt that an
      inference can be made from the results of the chemical test that
      the defendant had [the required] alcohol concentration in his body
      at the time of the offense.

            . . . [Nothing prevents] a defendant from arguing that his
      alcohol concentration increased from the time of arrest to the time
      of testing.

Forte v. State, 707 S.W.2d 89, 94–95 (Tex. Crim. App. 1986) (citation

omitted); see Bagheri v. State, 119 S.W.3d 755, 760–61 (Tex. Crim. App.

2003).    The State argues that the commitment question quoted above 5 is

proper because when it is considered in the full context of the State’s voir dire,

the question informed the jury that a defendant must be intoxicated while

driving to be guilty of DWI.

      In Halprin v. State, the appellant claimed that the trial court allowed the

State’s prosecutor to ask an improper commitment question regarding

mitigating evidence in a capital murder case. 170 S.W.3d 111, 118 (Tex. Crim.

App. 2005). The court of criminal appeals relied on the “totality of the voir dire


      5
      … The State concedes and we conclude that the question is a
commitment question because it connected a hypothetical fact—a breath test
of 0.08 of higher—to the commitment of finding Shuler guilty.

                                       13
record,” including statements made by the prosecutor after the question in

dispute, to hold that the question was not improper under Standefer. Id. at

118–19 & n.8.

      In Lee v. State, the court of criminal appeals considered whether a proper

commitment question related to the “one witness rule” (allowing a conviction

on the testimony of one witness where guilt is proven beyond a reasonable

doubt) that was asked to one juror could give appropriate context to

subsequent similar but truncated questions to other jurors when the subsequent

questions   themselves   would   not   have   been   proper   under   Standefer.

206 S.W.3d 620, 623–24 (Tex. Crim. App. 2006). The court explained that

during the voir dire in Lee, “in some instances, the State merely called a juror

by name after the previous juror answered the question or asked only ‘What do

you think?’” Id. at 624. The court then explained,

      Viewed in the abstract and singularly, these questions arguably do
      not flesh out each juror’s view on whether he or she would convict
      based on one witness they believed by a reasonable doubt who
      convinced them of the elements of a crime. But we do not view
      the questioning of each juror in isolation. In context, these later
      questions appear to be merely short-hand renditions of the original
      question that properly elicited whether the venire persons could
      follow the law, and we think it reasonable to presume the venire
      persons understood the later questions in this manner.




                                       14
Id. (emphasis added).6

      Based on the reasoning of Halprin and Lee, we will examine the question

challenged by Shuler in the context of the other voir dire questions and

statements by the prosecutor. In her introductory speech to the jury panel, the

prosecutor told the jury that the State had to prove that Shuler operated “a

vehicle in a public place while intoxicated.” 7 Later, the prosecutor told the jury

that the State “can elect to prove [DWI] by the loss of normal use [of faculties],

or [the State] can elect to prove that [Shuler’s] blood alcohol concentration was

a .08 or higher at the time of driving.”     The prosecutor then asked a juror

whether “at the time of driving, . . . [if Shuler’s] blood alcohol level was a .08

or higher, would you be able to find him guilty?” Next, just two pages in the

reporter’s record before the question at issue, the prosecutor told the jury that

the “State only needs to prove one of those definitions of intoxication, either

the .08 at the time of driving or [loss of normal use of faculties].” Finally, just



      6
       … We also note that courts address other voir dire issues by reviewing
the context of the record. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim.
App. 2000) (considering the “totality of the voir dire testimony” to review a trial
court’s decision on a challenge to a juror for cause); Cantu v. State, 842
S.W.2d 667, 687 (Tex. Crim. App. 1992) (reviewing the “totality of the voir
dire” to determine an issue regarding the amount of time given for voir dire),
cert. denied, 509 U.S. 926 (1993).
      7
      … We will add emphasis through italics to the prosecutor’s statements
and questions that give context to the challenged commitment question.

                                        15
after the question at issue, the prosecutor asked several jurors, “Can you . . .

also follow the law and find someone guilty if we prove to you that the breath

test was over a .08 at the time of driving?”

      We hold that the trial court could have reasonably found that these

several references, which connect the 0.08 blood alcohol level to the time of

operating a vehicle, provided adequate context to the challenged question so

that the jury could understand that the same connection was tacitly included

as part of that question. Thus, we hold that in context, the question was not

an improper commitment question and that the trial court did not abuse its

discretion by overruling Shuler’s objection to the question.     See Lee, 206

S.W.3d at 623–24; Halprin, 170 S.W.3d at 118–19; Barajas, 93 S.W.3d at 38.

We therefore overrule Shuler’s third point.




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                               Conclusion

     Having overruled all of Shuler’s points, we affirm the trial court’s

judgment.



                                       TERRIE LIVINGSTON
                                       JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 24, 2009




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