                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00150-CR



              ROBERT WYATT, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 40,788-A




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
           While driving home after an upsetting argument with his wife, Robert Wyatt, who had

admittedly consumed two large beers, was speeding—fifty-nine miles per hour in a zone with a

speed limit of forty-five—on Highway 80 in March 2011. Noticing Wyatt’s speeding vehicle,

Texas Department of Public Safety (DPS) Officer Carl Davis initiated a traffic stop. Before

pulling over to the side of the road, Wyatt weaved over the center line. Once Davis appeared at

Wyatt’s driver-side window, Wyatt delayed in getting the window down. Davis smelled the odor

of alcohol emitting from Wyatt, and he continued to smell that odor in the open air. Wyatt told

Davis he consumed two twenty-four-ounce beers. 1 After conducting field sobriety tests, Davis

concluded that Wyatt had been driving under the influence of alcohol. As a result of the arrest,

Wyatt was convicted of the felony offense of driving while intoxicated (DWI), had his sentence

enhanced due to prior convictions, 2 and was sentenced to fifty years’ imprisonment. Because the


1
 Two twenty-four-ounce “tallboy” cans appear to be the equivalent of four, U.S. standard, twelve-ounce cans of
beer. See, e.g., Blood Alcohol Percentage Charts, TX. ALCOHOLIC BEVERAGE COMM’N,
http://www.tabc.state.tx.us/enforcement/blood_alcohol_percentage_chart.asp.
2
    The indictment contained the following enhancement paragraphs:

           And it is further presented in and to said Court that, prior to the commission of the aforesaid
           offense (hereafter styled the primary offense), on the 25th day of June, 1993, in cause number
           6315 in the County Court of Marion County, Texas, the defendant was convicted of an offense
           relating to the operating of a motor vehicle while intoxicated; and on the 21st day of May, 1996, in
           cause number 96-127 in the County Court at Law of Harrison County, Texas, the defendant was
           convicted of an offense relating to the operating of a motor vehicle while intoxicated;

           And it is further presented in and to said Court that, prior to the commission of the aforesaid
           offense (hereafter styled the primary offense), on the 11th day of July, 2002, in cause number
           F11,804 in the 115th Judicial District Court of Marion County, Texas, the defendant was
           convicted of the felony offense of Driving While Intoxicated.

           And it is further presented in and to said Court that, prior to the commission of the primary
           offense, and after the conviction in cause number F11,804 was final, the defendant committed the

                                                            2
evidence is sufficient to support the conviction, we affirm the judgment of the trial court, after a

modification.

(1)     Sufficient Evidence Supports the Verdict

        Wyatt argues, in his one appellate point, that the evidence is insufficient to support a

finding beyond a reasonable doubt that he operated a motor vehicle while intoxicated.

        In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We are to conduct a rigorous

sufficiency review focusing on the quality of the evidence presented. Brooks, 323 S.W.3d at

917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).



        felony offense of Driving While Intoxicated and was convicted on the 10th day of August, 2004,
        in cause number F13,419 in the 276th Judicial District Court of Marion County, Texas.

Because the indictment alleged, in the first paragraph, that Wyatt had two prior convictions for DWI, the offense
was a felony of the third degree. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). If it is shown on trial of
a felony offense that “the defendant has previously been finally convicted of two felony offenses, and the second
previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become
final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years or less than 25 years.” TEX. PENAL CODE ANN. § 12.42(d) (West
Supp. 2012).
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       The elements of the offense are measured as defined by a hypothetically correct jury

charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct

jury charge “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.

       Under Texas law, a person is guilty of DWI if the person (1) is intoxicated (2) while

operating a motor vehicle (3) in a public place. See TEX. PENAL CODE ANN. § 49.04 (West Supp.

2012). Wyatt contends only that the evidence was insufficient to prove the intoxication element

of the offense. Intoxication may be proved one of two ways—(1) proof of impairment, i.e., loss

of the normal use of mental or physical faculties, or (2) proof of alcohol concentration in the

blood, breath, or urine of 0.08 or more, i.e., intoxication “per se.” TEX. PENAL CODE ANN.

§ 49.01(2) (West 2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. 2010).            Here, Wyatt

complains that intoxication was not proven by impairment or by proof of blood-alcohol

concentration in the blood. We disagree.

       Davis initiated the traffic stop because Wyatt was speeding, but noticed Wyatt weave

over the center line before he pulled onto the side of the road. After initiating contact with

Wyatt, Davis noticed a strong odor of alcohol emanating from Wyatt’s car. The odor of alcohol

did not dissipate as Davis spoke with Wyatt at the back of Wyatt’s car. Wyatt admitted that he

consumed two twenty-four ounce cans of beer, the last of which was consumed approximately

thirty minutes before the stop. Wyatt did not use the car for balance while walking, and there

were no open containers of alcoholic beverages in the car. When speaking with Wyatt, Davis

                                                4
noticed a small piece of chewing tobacco on Wyatt’s shirt, suggesting to Davis that Wyatt used

the tobacco to try to mask the odor of alcohol. Wyatt seemed to be upset and told Davis he had

been crying due to an argument with his wife. Wyatt’s eyes were watery and bloodshot, and his

speech was slurred. Wyatt’s answers to Davis were consistent, and he did not sway when he

stood behind his car. Davis administered field-sobriety tests.

         Wyatt demonstrated six clues of intoxication on the horizontal gaze nystagmus (HGN)

test. While performing the walk-and-turn test, Wyatt used his arms to balance and stopped and

asked directions while he was turning. During the one-leg-stand test, Wyatt put his foot down

twice, swayed, used his arms, and hopped.

         Davis testified that, based on Wyatt’s speeding, lane violation, failing to roll down the

window when Davis approached the vehicle, the odor of alcohol, admission to drinking two

twenty-four ounce cans of beer, fumbling in his vehicle for identification, and performance on

the field sobriety tests, Davis formed the opinion that Wyatt was intoxicated.         The video

recording of Davis’ encounter with Wyatt was played for the jury. The jury was able to observe

Wyatt throughout the course of the stop, including Wyatt’s performance on the field sobriety

tests.

         Davis’ testimony about Wyatt’s performance on the field sobriety tests is evidence of

Wyatt’s loss of his physical faculties by reason of the introduction of alcohol into the body. See

Compton v. State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet. ref’d) (evidence of

lack of smooth pursuit on HGN test, using hands to balance during one-leg-stand test, speeding,

running red light, smell of alcohol on breath, admission of drinking two beers, and one cold beer

                                                 5
found in vehicle, sufficient to support DWI conviction); Reagan v. State, 968 S.W.2d 571, 573

(Tex. App.—Texarkana 1998, pet. ref’d) (defendant did not properly complete walk-and-turn

and one-leg-stand tests, smelled of alcohol, admitted to consuming “a couple of drinks,” had

bloodshot, watering, and dilated eyes, slurred speech, and failed HGN test); Kennedy v. State,

797 S.W.2d 695, 696 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (evidence of intoxication

sufficient where defendant swayed as he performed “head tilt” test, failed to follow instructions

and appeared to lose balance when performing walk-and-turn test, dropped leg on one-leg-stand

test, and had red, glassy eyes, slurred speech, and strong odor of alcohol on breath). There was

sufficient evidence of Wyatt’s impairment.

        After his arrest, Wyatt was transported to Good Shepherd Hospital in Longview for Davis

to obtain a blood specimen. Karen Ream, a forensic scientist for the Texas DPS crime laboratory

in Tyler, testified that she performed the blood-alcohol concentration (BAC) test on Wyatt’s

blood specimen, taken at the hospital at 11:19 p.m. on the evening of Wyatt’s arrest. The

specimen contained 0.10 grams of alcohol per 100 milliliters of blood. The BAC of 0.10 reflects

results for that time only. Ream testified that she could not determine Wyatt’s BAC at 10:45

p.m. on that same evening. Retrograde extrapolation is an estimate of BAC at a prior time, based

on either hypothetical or a known set of conditions.                 Ream did not perform a retrograde

extrapolation in this case because she did not have adequate information to do so. 3 Ream,




3
Ream also stated that she does not perform retrograde extrapolations because they are estimates and are subject to
manipulation.

                                                        6
therefore, could not determine from her analysis whether Wyatt’s BAC at the time of the traffic

stop was 0.08 or greater.

            Wyatt contends that Ream’s testimony does not establish Wyatt’s BAC at the time of the

traffic stop. He claims this theory of intoxication is thus eliminated. On the contrary, Wyatt’s

BAC test result, which indicated a 0.10 BAC approximately ninety minutes after he drove,

during which time he was not in a position to consume more alcohol, was probative evidence

that his BAC level while he drove was in excess of 0.08, even absent expert retrograde

extrapolation testimony—given the accompanying evidence of impairment already discussed. 4

See Kirsch, 306 S.W.3d at 746.                 This evidence raises a logical inference that Wyatt was

intoxicated at the time he was driving at 10:45 p.m., as well as at the time the BAC test was

performed, in light of the additional evidence, including the strong odor of alcohol emanating

from Wyatt, Wyatt’s admitted recent consumption of two twenty-four-ounce beers, his red,

watery eyes, slurred speech, speeding, lane violation, fumbling in his vehicle for identification,

and performance on the field sobriety tests. See id. Evidence of intoxication obtained near the

time of driving is probative evidence the defendant was intoxicated while driving.                See

Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006) (results of breath tests taken

seventy-five minutes after driving had “considerable probative value” in proving both per se and

impairment intoxication at time of driving); State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.

App. 2005) (results of breath test obtained ninety minutes after arrest probative of both

impairment and per se prongs of DWI offense); Stewart v. State, 129 S.W.3d 93, 97–98 (Tex.


4
    The jury was instructed on both methods of proof of intoxication.
                                                            7
Crim. App. 2004) (results of breath test obtained eighty minutes after arrest probative of both

impairment and per se prongs of DWI offense).

       After viewing this evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt that Wyatt operated his motor vehicle

while intoxicated.

(2)    Modification of Judgment

       After the jury found Wyatt guilty of the felony offense of DWI, Wyatt elected to have the

trial court assess punishment. Wyatt entered a plea of true to both enhancement allegations. The

judgment reflects no plea or finding regarding the first enhancement paragraph.

       This Court has the authority to modify the judgment to make the record speak the truth

when the matter has been called to our attention by any source. TEX. R. APP. P. 43.2; French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex.

App.—Texarkana 2009, no pet.). The judgment does not accurately reflect what happened in

open court. When the appellate court has the necessary evidence before it for correcting the

judgment, the judgment may be modified and corrected on appeal. Banks v. State, 708 S.W.2d

460, 462 (Tex. Crim. App. 1986).

       Because Wyatt entered a plea of true to the first enhancement paragraph of the

indictment, and the court found the first enhancement paragraph to be true, but the judgment

reflects these facts only as to the second enhancement, we modify the judgment to reflect a plea

of true and a finding of true to the first enhancement paragraph as well as the second. See TEX.

R. APP. P. 43.2(b).

                                                8
      We affirm the judgment of the trial court, as modified.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:      July 3, 2013
Date Decided:        July 12, 2013

Do Not Publish




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