                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-366-CR


MICHAEL SEAN LEWIS                                                APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

                                          ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. Introduction

      In two points, Appellant Michael Sean Lewis appeals his conviction for

felony driving while intoxicated (DWI).2 We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
      2
      … See T EX. P ENAL C ODE A NN. § 49.09(b)(2) (Vernon Supp. 2007) (stating
that DWI is a felony if the defendant has two previous DWI convictions).
                      II. Factual and Procedural History

      In the early hours of March 2, 2005, Fort W orth Police Officer Deena

Evans stopped Lewis on Camp Bowie for speeding and for failing to wear a

seatbelt. Rather than pull over to the curb, Lewis stopped his car in a left-turn

lane. Officer Evans testified that when she asked Lewis for his driver’s license

and proof of insurance, she smelled alcohol coming from him and noticed his

bloodshot eyes and slurred speech. When Officer Evans asked Lewis from

where he had come, he said, “Katie Lynn’s,” a bar. When she asked him if he

had been drinking, he said, “I had some.” Officer Evans had Lewis exit his car

and as he did so, she noticed that his balance was swayed and unsteady. She

had Lewis perform numerous sobriety tests; after he failed several of them,

Officer Evans arrested him. At the police station, Lewis performed additional

sobriety tests and agreed to submit a breath sample for alcohol analysis.

      A jury convicted Lewis of driving while intoxicated and felony repetition 3

and assessed punishment at seven years’ imprisonment and a $6,000 fine. The

trial court sentenced Lewis to eight years’ community supervision. This appeal

followed.




      3
       … At trial, both parties stipulated that Lewis had two prior DWI
convictions.

                                       2
                             III. Factual Sufficiency

      In his second point, Lewis claims that the evidence presented at trial was

factually insufficient to support his conviction.

      A. Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). 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, though 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

                                        3
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 fact-

finder’s. Johnson, 23 S.W.3d at 12; 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, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9. An opinion addressing factual sufficiency must include a

discussion of the most important and relevant evidence that supports the

appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.

Crim. App. 2003).

      B. Analysis

      Lewis argues that the evidence presented at trial was factually insufficient

to support his conviction because the video recording of Officer Evans’s initial

encounter with Lewis on Camp Bowie did not show that he was intoxicated.

                                        4
According to Lewis, Officer Evans’s claim at trial that Lewis had swayed and

weaved during their encounter was not supported by the video recording.

Lewis argues that this video recording, which was taken “within minutes of his

operation of a vehicle,” has greater evidentiary weight than the breath tests

that were taken over an hour later.

      Lewis is correct that the video recording of Officer Evans’s initial

encounter with him does not unequivocally show that Lewis was intoxicated.

Equally important, however, is that the recording, with its poor lighting and

grainy, relatively small images of Officer Evans and Lewis, does not

unequivocally show that Lewis was not intoxicated.

      Even more importantly, Lewis fails to address in any detail Officer Evans’s

trial testimony. Officer Evans testified that after she pulled Lewis over and

began speaking to him, she noticed the smell of alcohol coming from him, and

she also noticed that his eyes were bloodshot and watered and that his speech

was slurred. She subsequently asked Lewis to get out of the car and, as he did

so, he stumbled over a street median.4 After Lewis was out of his car and

Officer Evans began speaking with him, she noticed that his balance was

“swayed and unsteady” and that, as he walked to the rear of his vehicle, “his




      4
          … The video recording also shows this.

                                        5
walk was swayed, staggered and unsteady” and “[h]is speech was slurred.”

She then administered three field-sobriety tests. First, she administered the

horizontal gaze nystagmus (HGN) test and found a total of six clues—three in

each eye.5 She then administered the walk-and-turn test and found that Lewis

exhibited three clues. Finally, she administered the one-leg stand and found

that Lewis exhibited one clue. She then arrested him for DWI.


         Giving due deference to the jury’s determinations of Officer Evans’s

demeanor and credibility, we cannot say that the evidence of Lewis’s

intoxication when he was pulled over by Officer Evans is so weak that the

verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at

414–15, 417; Johnson, 23 S.W.3d at 11. Thus, we hold that the evidence is

factually sufficient to support Lewis’s conviction. We overrule Lewis’s second

point.


                         IV. “Per Se” Theory of Intoxication


         In his first point, Lewis argues that the trial court erred when it submitted

to the jury the “per se” theory of intoxication. In its indictment, the State

alleged that Lewis had “operate[d] a motor vehicle in a public place while [he]




         5
       … When asked by the State how many clues indicate intoxication,
Officer Evans answered, “Six—well, four.”

                                           6
was intoxicated by not having the normal use of his mental or physical faculties

by reason of the introduction of alcohol into his body or by having an alcohol

concentration of at least 0.08.” 6 After the State rested its case, Lewis moved

for a directed verdict on the portion of the indictment that alleged that Lewis

had a blood-alcohol concentration of 0.08. The trial court denied the motion.


      In its charge to the jury, the trial court defined “intoxicated” as “(A) not

having the normal use of one’s mental or physical faculties by reason of the

introduction of alcohol into the body; OR (B) having an alcohol concentration

of 0.08 or more.”      The charge authorized the jury to find Lewis guilty if it

found, among other things, that Lewis had been operating a motor vehicle while

he “was intoxicated by not having the normal use of his mental or physical

faculties by reason of the introduction of alcohol into his body or by having an

alcohol concentration of at least 0.08.” Lewis objected to the jury instruction




      6
          … The indictment also included a second paragraph alleging that Lewis
had

      operate[d] a motor vehicle in a public place while [he] was
      intoxicated by not having the normal use of his mental or physical
      faculties by reason of the introduction of alcohol, or by having an
      alcohol concentration of at least 0.08, a controlled substance, a
      drug, a dangerous drug, or a combination of two or more of these
      substances into his body.

The State subsequently abandoned this paragraph.

                                        7
on the “per se” theory because the State had failed to present sufficient

evidence, i.e., evidence of Lewis’s blood-alcohol content at the time that he

operated his vehicle, to support the “per se” theory. The trial court overruled

his objection.7

      A. Standard of Review




      7
       … The State argues that because Lewis’s claim of jury-charge error is
based on his motion for a directed verdict, “this court should limit its review to
the denial of said motion.” But the following exchange between Lewis’s
attorney and the trial court makes clear that Lewis specifically objected to the
jury charge—it was the trial court that linked Lewis’s jury-charge objection to
his motion for a directed verdict:

      [Trial Court]: . . . I understand the Defense objects to the two
      phrases in the charge which define the .08 theory and apply in the
      application paragraph.
             Based on the Court’s failure to grant the directed verdict,
      other than the objection to those two parts of the charge, do you
      have any other objections to the charge?

      [Lewis’s Attorney]: No. Other than those, we don’t.

      [Trial Court]: All right. Any requested charges that were not
      granted? I did put the Fifth Amendment in there for you already.

      [Lewis’s Attorney]: No.

      [Trial Court]: Then the objection to the .08 language is still
      overruled.



                                        8
      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731–32. Error

in the charge, if timely objected to in the trial court, requires reversal if the error

was “calculated to injure the rights of [the] defendant,” which means no more

than that there must be some harm to the accused from the error. T EX. C ODE

C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at

731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g). In other words, a properly preserved error will require reversal as

long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this

determination, “the actual degree of harm must be assayed in light of the entire

jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.; see also Ovalle

v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).

      B. Analysis

      Lewis argues that the trial court erred when it submitted to the jury the

“per se” theory of intoxication.

      Texas law defines ”intoxicated” as


                                          9
      not having the normal use of mental or physical faculties by reason
      of the introduction of alcohol, a controlled substance, a drug, a
      dangerous drug, a combination of two or more of those
      substances, or any other substance into the body; or . . . having an
      alcohol concentration of 0.08 or more.

T EX. P ENAL C ODE A NN. § 49.01(2) (Vernon 2003). The first definition is known

as the “impairment” theory of intoxication; the second is known as the “per se”

theory of intoxication. Bagheri v. State, 119 S.W.3d 755, 756 n.1 (Tex. Crim.

App. 2003).     These two theories of intoxication do not involve separate

violations of the law. Id. at 762. They set forth “alternate means by which the

State may prove intoxication, rather than alternate means of committing the

offense.” Id. When a trial court submits alternate means of committing an

offense, the evidence is sufficient to support a general verdict of “guilty” if it

is sufficient to prove any one of the alleged means. Id.; Reardon v. State, 695

S.W.2d 331, 334 (Tex. App.—Houston [1st Dist.] 1985, no pet.).

      Given the testimony of Officer Evans, the evidence submitted at trial was

both legally and factually sufficient to prove the first definition of “intoxicated,”

which was also submitted to the jury. That is, the evidence was sufficient to

establish that Lewis did “not hav[e] the normal use of mental or physical

faculties by reason of the introduction of alcohol.” See T EX. P ENAL C ODE A NN.




                                         10
§ 49.01(2)(A). Thus, the evidence was sufficient to support the jury’s general

verdict of “guilty.”

      It is true that in its arguments to the jury, the State pointed out that the

jurors did not need to be unanimous in deciding in which manner Lewis was

intoxicated, i.e., not having normal use of mental faculties, not having normal

use of physical faculties or blood-alcohol content of at least 0.08. But it is also

true that in these same arguments, the State emphasized Officer Evans’s

testimony regarding her encounter with Lewis at least as much as it emphasized

the evidence concerning Lewis’s blood-alcohol content.          Thus, assuming,

without deciding, that the trial court erred by including the “per se” theory of

intoxication in the jury charge, we conclude that any charge error was

harmless. See Almanza, 686 S.W.2d at 171; Ovalle, 13 S.W.3d at 786. We

overrule Lewis’s first point.

                                 V. Conclusion

      Having overruled both of Lewis’s points, we affirm the trial court’s

judgment.


                                             PER CURIAM

PANEL F:     MCCOY, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

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DELIVERED: June 12, 2008




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