                                     NO. 07-06-0028-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                    JUNE 23, 2006
                           ______________________________

                                 DARRELL JEROME HOLT,

                                                                   Appellant

                                                v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

              FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                   NO. 2682; HON. GORDON H. GREEN, PRESIDING
                         _______________________________

                                 Memorandum Opinion
                           _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant, Darrell Jerome Holt, appeals his conviction for driving while intoxicated.

His three issues involve the legal and factual sufficiency of the evidence. He contends that

the evidence was legally insufficient to prove that he had a blood alcohol concentration of

at least .08 at the time of his arrest and that it was legally and factually insufficient to prove

that he had lost the normal use of his mental or physical faculties at the time of his arrest.

We affirm the judgment of the trial court.
                Issue 1 - Legal Sufficiency of Blood Alcohol Concentration

         The State alleged in the indictment alternative ways of proving that appellant was

intoxicated. The first involved his having a blood alcohol concentration of at least .08. The

second encompassed appellant lacking the normal use of his mental and physical faculties

by reason of ingesting alcohol. It is the first that we address here.

         The standard by which we review the sufficiency of the evidence is well established.

We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), Zuliani v. State, 97

S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App.

2000) for an explanation of them.

         Appearing of record is the testimony from both officers who were present when

appellant attempted to perform various field sobriety tests. One of the officers testified,

several times, that appellant’s performance on those tests indicated that appellant had a

blood alcohol level of at least .08. Irrespective of whether this testimony was admissible,

see Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994) (wherein the Court of

Criminal Appeals held that a witness may not attempt to quantify one’s blood alcohol level

from evidence of how one performed field sobriety tests), it was nonetheless received into

evidence without objection from appellant.1 And, being received into evidence, it must be


         1
          The record discloses that in response to one of the multiple utterances by the officer, appellant
informed the trial court that he objected. However, nothing was said of the grounds underlying his objection.
Nor did appellant request a running objection of any kind. So, because the same testimony was admitted
without objection elsewhere during the trial, he waived any complaint he may have uttered to our consideration
of the utterance when assessing the sufficiency of the eviden ce. See La ne v . State, 151 S.W .3d 188, 192-93
(Tex. Crim. App. 2004) (holding that unless the litigant obtains a running objection, he waives any complaint
he may have as to the adm ission of particular evidence when the sa m e or like evidence is received elsewhe re
without objection). In othe r words, the respo nsibility fell upon ap pellant to obje ct to the supposed inadm issible
evidence, and when he failed to do so, the evidence m ust be cons idered in determining whe ther the record

                                                          2
considered by us in determining whether the verdict enjoyed the support of legally sufficient

evidence. Chambers v. State, 711 S.W.2d 240, 245-46 (Tex. Crim. App. 1986) (noting the

general rule requires the reviewing court to consider “all the evidence before the trier of fact

in determining sufficiency questions,” including evidence which may have been

inadmissible but was nonetheless received without objection). Finally, we deem it some

evidence of record upon which a rational factfinder could hold, beyond reasonable doubt,

that appellant had a blood alcohol level of .08 at the time of his arrest and overrule the

issue.

                Issues 2 and 3 - Sufficiency of the Evidence of Impairment

         Appellant next argues that the evidence was legally and factually insufficient to show

that he lacked the normal use of his mental and physical faculties due to the consumption

of alcohol. We overrule these issues as well.

         The record contains evidence of appellant’s performance on three field sobriety

tests. From that performance, an officer concluded that appellant should not have been

driving but also had a blood alcohol level sufficient to legal intoxication, i.e. a blood alcohol

level of .08. Yet, that is not all the evidence on the matter. Also of record is evidence that

while driving a semi tractor/trailer, appellant swerved from his lane of traffic and entered

that containing oncoming vehicles. Furthermore, at least one vehicle had to leave the lane



supported the ve rdict. See Fe rnan dez v . State, 805 S.W .2d 451, 455 (Tex. Crim. App. 1991) (holding that
the appellant was responsible for objecting to the hearsay and because he did n ot, the trier of fact was
authorized to consider it in reaching its verdict); Ch am bers v. State, 711 S.W .2d 240, 245-46 (Tex. Crim. App.
1986) (noting the general rule requires the reviewing court to consider “all the evidence before the trier of fact
in determining sufficiency questions,” including evidence which may have been inadmissible but was
nonetheless received without objection). Finally, appellant does not present an issue on appeal wherein he
questions the trial court’s decision, if any, to admit the evidence. Thus, whether admission of the evidence
was error is not befo re us .

                                                        3
into which appellant improperly entered and that vehicle was driven by the arresting

officer.2 Furthermore, appellant also smelled of alcohol and had two cold open cans of

beer in the glove box of his truck. One can had remnants of beer in it while a substantive

quantity of beer remained in the other. Other unopened cans of beer were also found in

the truck. Furthermore, appellant fell asleep in the arresting officer’s vehicle shortly after

being placed there. So too did appellant refuse to take a breath test. See State v. Marrs,

104 S.W.3d 914, 918 (Tex. App.–Corpus Christi 2003, no pet.) (holding that one’s refusal

to take a breath test is admissible). The foregoing, when considered together, is some

evidence upon which a rational jury could find, beyond reasonable doubt, that appellant’s

mental and physical abilities were impaired due to the ingestion of alcohol. And, while

there is evidence to the contrary, such as a passenger in appellant’s truck asserting that

he (the passenger) had drunk the beer, it was left to the factfinder to decide who to believe.

In short, the jury’s finding was not supported solely by weak evidence or overwhelmed by

contrary evidence. Rather, we can conclude, based upon a neutral review of all the

evidence that the jury was rationally justified in finding beyond reasonable doubt that

appellant’s physical and mental faculties were impaired due to the ingestion of alcohol.

Consequently, its decision enjoyed the support of factually sufficient evidence.

       The judgment of the trial court is affirmed.

                                                              Brian Quinn
                                                              Chief Justice

Publish.




       2
           Appellant offered e xcu ses that he was both fatigued a nd re ach ing for a ch icke n gizzard.

                                                         4
