      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00281-CR



                                  Robert Murphy, Appellant

                                                v.

                                  The State of Texas, Appellee


FROM THE COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY, NO. C-1-CR-11-216725
       HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Robert Murphy guilty of misdemeanor driving while

intoxicated, and the trial court sentenced him to 45 days in the sheriff’s weekender alternative

program. See Tex. Penal Code § 49.04. Appellant contends that the evidence is insufficient to prove

the offense and that the prosecutor engaged in improper argument. We will affirm the judgment.


                                        BACKGROUND

               Austin Police Department Officer Phillipe Bohn testified that he responded to a call

reporting a man passed out behind the wheel of a vehicle northbound on MoPac at LaCrosse. Bohn

said he found the vehicle in the lane of travel at the scene as described with EMS present. Bohn

testified that the vehicle’s engine was running and that the transmission was in park. The man in

the driver’s seat, appellant, was wearing his seat belt and was alone. Bohn testified that an EMS

technician knocked on the window, and appellant began to wake up. Bohn said that appellant

appeared confused and had trouble opening either the window or the door. Appellant lowered the
window, and Bohn said that he smelled a strong odor of alcohol, though he had described it in

his report as a slight to moderate odor, and noticed that appellant had vomited on himself. Bohn

reached in to open the door, turn the vehicle off, and take the keys. Bohn testified that he asked why

appellant’s pants were unbuttoned and unzipped. Appellant denied that they were until Bohn pointed

at them, and appellant did not explain why his pants were unsecured. Bohn testified that when he

asked where appellant was coming from and why he was there, appellant said “the lights turned on,

the lights turned off,” which Bohn said made no sense.

               APD Officer Jason Day arrived later and administered field sobriety tests to appellant.

He testified that the dispatch call on appellant was made at 4 a.m. Officer Day testified that he

noticed a strong mixture of odors, including alcohol, vomit, and feces. Day testified that appellant’s

speech was slurred and delayed. Day testified that appellant struggled to remove his wallet to

produce identification. Day testified that when asked where he was going, appellant responded

variously that he was not sure, that he was going nowhere in particular, and finally settled on that

he was going home, although his truck was headed away from the address given as his home. Day

testified that he continued to notice the same mix of odors emanating from appellant as they talked

outside the vehicle. Day said that appellant was swaying, had difficulty maintaining his balance, and

continued to have slurred and delayed speech. Day said that he asked appellant if he had conditions

that would interfere with his performance of the field sobriety tests and that appellant was evasive

but eventually indicated that he had no special conditions that would affect him. Day testified

that he observed sufficient clues indicating appellant’s intoxication on the horizontal gaze nystagmus

test, the straightline walk-and-turn test, and the one-leg stand. After unsuccessfully requesting




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information regarding appellant’s travel origin and intended destination, Day arrested appellant.

Appellant refused to provide breath or blood samples.


                                          DISCUSSION

Sufficient evidence supports the jury’s DWI verdict.

               Appellant contends that the evidence was legally insufficient to support the conviction

because the State adduced no evidence that he operated a vehicle while intoxicated. He argues that

the absence of evidence of when the vehicle might have been driven to the intersection and whether

appellant was intoxicated if he did so requires that we reverse the conviction. He contends that, on

this record, no reasonable juror could have found that appellant drove while intoxicated.

               We review all of the evidence in the light most favorable to the verdict and decide

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 (1979); Williams v. State, 301 S.W.3d

675, 684 (Tex. Crim. App. 2009). The jury must fairly resolve conflicts in the evidence, weigh the

evidence, and draw reasonable inferences from the evidence. Threadgill v. State, 146 S.W.3d 654,

663 (Tex. Crim. App. 2004). Evidence that, when viewed most favorably to the judgment, merely

raises a strong suspicion of guilt is legally insufficient to support a conviction beyond a reasonable

doubt. Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010).

               The parties cite cases with a range of facts and outcomes. One is particularly

persuasive for this case. In Pope v. State, this Court held that a jury reasonably inferred that Pope

was intoxicated while driving based on proof that his truck was found stopped in a roadway

with the engine running and Pope behind the wheel, asleep and intoxicated, with an open beer beside

him. 802 S.W.2d 418, 420 (Tex. App.—Austin 1991, no pet.). Though it was possible either that

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someone else drove the truck and abandoned it and Pope or that Pope did not become intoxicated

until after stopping the truck, this Court deferred to the jury’s determination and declined to conclude

that no reasonable jury could have found Pope guilty. Id. Appellant argues that additional evidence

present in that case—a blood-alcohol level of more than twice the legal limit and an open beer

can—distinguishes that case from ours. We find the similarities more striking and persuasive.

                Appellant was discovered at 4 a.m. unconscious and seatbelted behind the wheel of

his truck with the engine running in the roadway at an intersection. He had been there for almost

fifteen minutes when police arrived, but there is no evidence that he had any alcohol with him in

the vehicle. This supports an inference that he was no longer ingesting alcohol in the vehicle. He

nevertheless emitted an odor of alcohol of some strength, mixed with the smell of vomit and feces.

He showed several signs of intoxication on the field sobriety tests. He responded to questions that

he was “going” or “headed” somewhere, possibly home, not just parked on the public road. Based

on this evidence, we conclude that a reasonable jury could have found beyond a reasonable doubt

that, while intoxicated, appellant drove to the place he was found.


The prosecutor’s argument does not require reversal.

                Appellant complains that the prosecutor’s argument was improper by injecting

punishment into the guilt/innocence phase, inserting the prosecutor’s personal opinion regarding

appellant’s guilt, and personally vouching for the credibility of Officer Day.1 Appellant did not

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          The prosecutor asserted, “We’re just going to ask for some probation and community
service and classes so that he can learn from his mistake and just go on with his life.” Appellant
contends that the prosecutor sought to persuade the jury that a conviction was not a big deal, to
“abandon logic and reason,” and to overlook the lack of evidence of driving while intoxicated. The
State asserts that the prosecutor argued this to stave off jury nullification of the charges arising from
jurors’ possible concern that the court might impose a harsh punishment, and that therefore this
argument is a plea for law enforcement.

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object to the prosecutor’s argument at trial, however, and has failed to preserve this complaint

for appeal. Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“a

defendant’s failure to object to a jury argument or a defendant’s failure to pursue to an adverse

ruling his objection to a jury argument forfeits his right to complain about the argument on appeal”).

               Appellant contends that the prosecutor’s argument at trial was so egregiously

improper that it deprived him of due process and should not require preservation to merit reversal.

Proper jury argument includes 1) a summary of the evidence; 2) reasonable deductions from

the evidence; 3) answers to argument of opposing counsel; and 4) a plea for law enforcement.

Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990). Improper prosecutorial argument

can be reversible error only when the argument is “extreme, manifestly improper, injects new

and harmful facts into the case or violates a mandatory statutory provision and is thus so

inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to

disregard [the] argument.” Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). We




        When envisioning a possible post-trial conversation that the jurors might have, the prosecutor
imagined that after trial when jurors explained the evidence to others, the non-jurors would ask,
“[‘][W]ell, you found him guilty, right?[’] And I think that’s what we have here. This is—it is
basically—the only thing that would make a more open and shut case would be if we had breath or
blood result.” Appellant contends that the prosecutor thereby improperly told the jurors that this
is an open-and-shut case. The State argues that this excerpt was from a longer discussion of the
evidence of guilt that comprised an answer to appellant’s argument that this was an open-and-shut
case for acquittal. The State argues that this was a proper plea for law enforcement.

        The prosecutor said of Officer Day, “I would be proud to bring him up in front of any jury
in Austin any day of the week. I think he was very fair.” Appellant contends that this is an improper
personal opinion of the witness’s credibility. See Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim.
App. 1981). The State argues that it was a proper response to appellant’s argument that Officer Day
“mischaracterized or fudged” the nystagmus evidence under oath, that Officer Day played “hide
the ball” with appellant when conducting the one-leg stand test, and that the testifying officers’
willingness to fudge or exaggerate evidence should create reasonable doubt.

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use the following factors to decide whether improper argument was harmful: 1) the severity of the

misconduct, 2) measures adopted to cure it, and 3) the certainty of conviction absent the misconduct.

Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).

               We are not persuaded that any of the argument challenged in this case is

sufficiently improper to disregard the preservation requirement of Cockrell. See 933 S.W.2d at 89.

Uncontroverted evidence showed that appellant was discovered unconscious and smelling of vomit,

feces, and alcohol—with no evidence of alcohol in the truck—while sitting seatbelted into the

driver’s seat of a running motor vehicle parked in the travel lane of a public road. The challenged

argument excerpts do not weigh perceptibly on the main issue requiring juror inference—whether

appellant operated that motor vehicle while intoxicated in order to get to that public intersection.

We conclude beyond a reasonable doubt that the challenged argument excerpts did not contribute

to appellant’s conviction or punishment, and further that they did not affect his substantial rights.

See Tex. R. App. P. 44.2(a), (b).


                                         CONCLUSION

               We affirm the judgment.




                                              Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: August 22, 2014

Do Not Publish

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