                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00529-CR


Harvey Dale Wright Jr.                    §   From County Criminal Court No. 8

                                          §   of Tarrant County (1140908)

v.                                        §   March 21, 2013

                                          §   Opinion by Justice Gabriel

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Lee Gabriel
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00529-CR


HARVEY DALE WRIGHT JR.                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1

                                     ----------

                                   Introduction

      In a single issue, Appellant Harvey Dale Wright Jr. challenges the

sufficiency of the evidence to support his conviction for driving while intoxicated

(DWI). We affirm.

      1
       See Tex. R. App. P. 47.4.
                                Background Facts

      Azle Police Officer Christopher Negrete was pulling into a bar’s parking lot

after midnight when Officer David Poe alerted him to a white pickup truck he had

just seen strike a car parked at the bar. Officer Negrete stopped Appellant’s

white pickup truck, and when he approached Appellant, he smelled a moderate

odor of alcohol; noticed that Appellant’s eyes were bloodshot, watering, and

heavy; and also noticed that Appellant’s speech was slurred. When the officer

instructed him to walk to the back of the truck, Appellant was unsteady.

Appellant appeared to be intoxicated and admitted that he had consumed about

four beers.

      Officer Negrete administered the walk-and-turn and one-leg-stand field-

sobriety tests. Appellant exhibited four out of ten clues of intoxication on the

walk-and-turn and two out of four on the one-leg stand. Appellant also failed an

alphabet test as well as a counting test.

      Officer Negrete took Appellant to jail, where he asked Appellant if he would

submit to a breath test. Appellant refused. Appellant also refused to repeat the

field-sobriety tests. Officer Negrete concluded that Appellant had lost the normal

use of his mental and physical faculties and that he appeared intoxicated.

      At trial, the State offered in-car and jail videos showing Appellant’s

performance on the sobriety tests, and the jury found him guilty of DWI. The trial

court assessed punishment at two years’ probation.




                                            2
                                   Standard of Review

        In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict 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); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). When the record supports conflicting inferences, a reviewing

court must presume that the trier of fact resolved the conflicts in favor of the

verdict and defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793.    The trier of fact is the sole judge of the weight and credibility of the

evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364 S.W.3d

at 903. Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the trier of fact. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010).

                                     Discussion

        In his sole issue, Appellant claims that the evidence is insufficient to show

that he was “intoxicated” while driving.

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

vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (West Supp. 2012).

“Intoxicated” means “not having the normal use of mental or physical faculties by




                                           3
reason of the introduction of alcohol . . . into the body.” Id. § 49.01(2)(A) (West

2011).

         A police officer’s testimony that an individual is intoxicated is probative

evidence of intoxication. Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d); see Annis v. State, 578 S.W.2d 406, 407

(Tex. Crim. App. [Panel Op.] 1979) (holding the opinion testimony of an officer

legally sufficient to support a finding of intoxication); Zill v. State, 355 S.W.3d

778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (same).

      In this case, Officer Negrete testified that Appellant appeared to be

intoxicated. The record shows that Appellant hit a car parked at a bar; that he

smelled moderately of alcohol; that his eyes were bloodshot and his speech was

slurred; that he admitted to having about four beers; and that his walk was

unsteady.

      The record also shows that Officer Negrete observed four out of ten clues

of intoxication on the walk-and-turn test; that Appellant exhibited two out of four

clues of intoxication on the one-leg-stand test; that he failed the alphabet and

counting tests; that he refused a breath test and also refused to repeat the

sobriety tests at the jail; and that Officer Negrete believed that Appellant

appeared to be intoxicated and had lost the normal use of his mental and

physical faculties due to having consumed alcohol.

      In addition, the jury watched the in-car and jail videos, observing Appellant

at the scene and at jail for itself, and found that Appellant was intoxicated. See


                                          4
Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.)

(holding that a jury could draw its own conclusions from observing the

defendant’s behavior in the video and decide that he appeared intoxicated).

      Further, refusal to take a breath test may be considered as evidence of

guilt. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex. Crim. App. 1988) (noting

that “it was not improper to simply argue that appellant refused [testing] because

he was intoxicated”); see also Russell, 290 S.W.3d at 397 (noting that the jury

could have inferred from the defendant’s refusal to take a breath test that he

believed he was intoxicated); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—

Houston [14th Dist.] 1991, pet ref’d) (holding that a jury may consider refusal to

provide breath or blood samples as evidence of guilt).

      Thus, viewing the evidence in the light most favorable to the verdict, we

hold that the evidence is sufficient to show that Appellant operated a motor

vehicle in a public place while not having the normal use of his mental and

physical faculties by introduction of alcohol into his body. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903; Zill, 355 S.W.3d at 785–88.

Accordingly, we hold that the evidence is sufficient to support the verdict, and we

overrule Appellant’s sole issue.




                                        5
                               Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.




                                             LEE GABRIEL
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 21, 2013




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