                                  NO. 07-10-00333-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                    MARCH 13, 2012


                     BRYAN MATTHEW CAMPBELL, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                 FROM THE COUNTY COURT OF PARMER COUNTY;

           NO. 11090; HONORABLE BONNIE JEAN CLAYTON-HEALD, JUDGE


Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.1


                               MEMORANDUM OPINION


       Appellant Bryan Matthew Campbell appeals from his jury conviction of the

misdemeanor offense of driving while intoxicated and the resulting sentence of 120

days in jail, probated for twelve months, and a fine of $700.00. Through five issues,

appellant contends the trial court reversibly erred. We will affirm.




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
                                       Background

      An information charged appellant with driving and operating “a motor vehicle in a

public place, to-wit: near intersection of CR B and FM 214, Parmer County, Texas,

when the defendant did not have the normal use of defendant’s mental and physical

faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a

combination of two or more of those substances into the body.”


      After a not-guilty plea, the State produced the testimony of a state game warden

and a Department of Public Safety trooper. The game warden testified he and another

warden were patrolling for “night hunters”2 about 11 p.m. on November 20, 2009. He

saw a vehicle driving “erratically” and watched it for ten or fifteen minutes. He then saw

the car disregard a stop sign where the county road entered the highway. The car

fishtailed and one of its wheels came up off the ground. The warden stopped the car

and identified the driver as appellant.    Four minors were passengers. The warden

testified he could smell alcohol and appellant told the warden he had consumed three

beers that night. Appellant behaved belligerently toward the warden, and he formed the

opinion appellant was intoxicated. The warden called DPS to handle the remainder of

the DWI investigation.


      The DPS trooper arrived some thirty-eight minutes after the warden stopped

appellant. He testified that while talking with appellant, he noticed appellant’s eyes

were glassy and detected the odor of an alcoholic beverage on appellant’s breath.

Appellant also told the trooper he had drunk three beers. The trooper performed three

      2
          The warden explained that game laws prohibit hunting deer at night.

                                            2
field sobriety tests and noted clues of intoxication on each.          He told the jury that

appellant was intoxicated, in his opinion.


       The jury was shown a digital recording of the administration of the field sobriety

tests, taken from the camera mounted on the dashboard of the DPS vehicle. The

trooper placed appellant under arrest for DWI. Appellant refused to take a portable

breath test and later refused to submit to an intoxilyzer test.


       The jury found appellant guilty as charged in the information and punishment was

assessed as noted. This appeal followed.



                                           Analysis

Sufficiency of the Evidence

       In appellant’s first issue, he challenges the sufficiency of the evidence to show he

operated a motor vehicle in a public place while intoxicated by not having the normal

use of his mental or physical faculties.


       We evaluate the sufficiency of evidence supporting criminal convictions under the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010) (plurality

opinion). That standard requires that we view all evidence in the light most favorable to

the verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Salinas v. State, 163

S.W.3d 734, 737 (Tex.Crim.App. 2005). The         standard    “gives    full   play   to   the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
                                              3
evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.


       To establish the offense of driving while intoxicated, the State must prove the

defendant was intoxicated while operating a motor vehicle in a public place. Tex. Penal

Code Ann. § 49.04(a) (West Supp. 2011); Stoutner v. State, 36 S.W.3d 716, 721

(Tex.App.--Houston [1st Dist.] 2001, pet. ref'd). The Penal Code defines "intoxicated" as

(1) "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 (2)

"having an alcohol concentration of 0.08 or more." Tex. Penal Code Ann. § 49.01(2)

(West 2011).


       Appellant initially challenges the evidence supporting the jury’s finding that

appellant had lost the normal use of mental or physical faculties by reason of the

introduction of alcohol. Tex. Penal Code Ann. § 49.01(2) (West 2011); Rios v. State,

No. 07-09-00259-CR, 2010 Tex.App. LEXIS 8146 (Tex.App.—Amarillo Oct. 6, 2010, no

pet.) (mem. op., not designated for publication).     He first contends that the game

warden’s observations were insufficient to authorize the jury to find appellant was

intoxicated. He then argues that even if the field sobriety tests administered by the DPS

trooper demonstrated he was intoxicated at the time they were administered, the lapse

of time between his driving and the administration of the tests renders the evidence he

drove while intoxicated insufficient.



                                           4
      At the outset we note that appellant’s argument suggests to us a wrong view of

our task when evaluating the sufficiency of the evidence. We do not evaluate the

evidence piecemeal. The Jackson v. Virginia standard requires that we consider “all of

the evidence in the light most favorable to the verdict.” 443 U.S. at 319 (emphasis

ours). The sufficiency of the warden’s testimony is not to be evaluated alone, nor that of

the trooper. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (not required

that each fact point “directly and independently” to guilt if “cumulative force of all the

incriminating circumstances is sufficient to support the conviction”). Moreover, juries

are permitted to draw reasonable inferences from evidence presented at trial. Hooper,

214 S.W.3d at 14, citing Jackson, 443 U.S. at 318-19.


      Appellant accurately notes that the law requires a temporal link between the

defendant’s driving and his intoxication. See, e.g., Stoutner v. State, 36 S.W.3d at 721.

The temporal link is thoroughly established by this record.3      As noted, the trooper

arrived some thirty-eight minutes after the warden conducted the traffic stop.         He

conducted the field sobriety tests within a few minutes of his arrival. The events were

recorded by video from the time the trooper arrived. The evidence gave the jury an

informed basis to determine the relationship between appellant’s driving and his

asserted intoxication. Stoutner, 36 S.W.3d at 721. Appellant cites no authority for his
      3
         The facts of this case thus are to be distinguished from those of two of the
cases appellant cites in connection with the link between driving and intoxication,
Kennemur v. State, 280 S.W.3d 305, 314 (Tex.App.—Amarillo 2008, pet. ref’d) and
Zavala v. State, 89 S.W.3d 134, 138 (Tex.App.—Corpus Christi 2002, no pet.). Both
those cases are accident cases in which the precise time of the accident, and thus the
driving, was not established.



                                            5
contention the approximate forty-five minute delay between traffic stop and field sobriety

tests renders the evidence insufficient, and we disagree with the contention.


       Appellant effectively cross examined the warden, weakening his testimony before

the jury, and not all of appellant’s behavior after the traffic stop indicated intoxication.

On cross examination, the warden could not identify precisely which mental or physical

faculty he considered appellant was lacking during their encounter, and acknowledged

that erratic driving is not necessarily an indicator of intoxication. The trooper similarly

made concessions under appellant’s effective cross examination, acknowledging that

factors other than intoxication could explain appellant’s performance on the sobriety

tests. However, the jury as trier of fact was the sole judge of the credibility of the

witnesses and the weight to be given the testimony. Cain v. State, 958 S.W.2d 404,

407-409 (Tex.Crim.App. 1997). It was free to accept or reject all or any part of any

witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).


       Both the warden and the trooper opined that appellant was intoxicated. See

Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979) (officer’s opinion testimony

defendant was intoxicated sufficient to establish intoxication); Henderson v. State, 29

S.W.3d 616, 622 (Tex.App.—Houston [1st Dist.] 2000, pet. ref’d) (same). The warden

testified to appellant’s erratic driving, speeding and fishtailing, the smell of alcohol, his

admission of consumption of three beers, and his belligerent behavior. The trooper

testified he noticed the smell of alcohol, appellant told him he drank three beers,

appellant had glassy eyes and performed poorly on each of the administered field

sobriety tests. The jury saw and heard appellant tell the officers, “Can’t do it, man” as he

                                             6
attempted the one-legged stand.      The video also shows appellant stumbled as he

completed the walk and turn test. Finally, as noted, the jury heard appellant refuse to

submit to breath or intoxilyzer tests, which under our law it could consider as evidence

of guilt. Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App. 1988). Viewed in the

light most favorable to the verdict, the evidence permitted rational jurors to find

appellant was driving without the normal use of his mental or physical faculties.


      Appellant next challenges the sufficiency of the evidence that he operated a

motor vehicle in a public place. He couches this aspect of his sufficiency challenge as

an assertion there was a material variance between the charging instrument, jury

charge, and the evidence presented. The jury charge tracked the information, stating

the allegation that appellant operated a motor vehicle “in a public place, to-wit: near

intersection of CR B and FM 214, Parmer County, Texas.” Appellant accurately asserts

that no testimony mentioned a county road “B.” The warden testified he saw appellant’s

vehicle driving on “County Road 13 in Parmer County” and he failed to obey the stop

sign “at the paved road.”


      Although    appellant   correctly   cites   Gollihar   v.   State,   46   S.W.3d   243

(Tex.Crim.App. 2001), as the foundational case law for analysis of variances between

charging instrument and proof, the other cases he cites predate Gollihar and rely

ultimately on Burrell v. State, 526 S.W.2d 799 (Tex.Crim.App. 1975). Appellant properly

acknowledges the information would adequately have alleged the offense of DWI by

stating he operated the vehicle in a public place in Parmer County, without the



                                             7
additional specific allegation the location was “near intersection of CR B and FM 214.”4

He argues, though, that having included the descriptive language of the specific setting

of the offense in the information, the State was obligated to prove it because it

“describe[d] an essential element of the offense.” That assertion is a statement of the

“Burrell exception” the Court of Criminal Appeals abandoned in Gollihar. 46 S.W.3d at

250, 256-57.


      In its two very recent opinions involving variance law, the Court of Criminal

Appeals made clear that the State’s failure to prove the statutory elements it has chosen

to allege cannot be an immaterial variance, Cada v. State, 334 S.W.3d 766, 776

(Tex.Crim.App. 2011), and that in a prosecution for theft, the State’s failure to connect

the person it plead as the property’s owner to the property in any way is a failure of

proof requiring acquittal, not an immaterial variance. Byrd v. State, 336 S.W.3d 242,

257-58 (Tex.Crim.App. 2011). Neither case suggests the proof of County Road 13 as

the location of appellant’s driving in Parmer County rather than CR B is anything but an

immaterial variance under Gollihar. Appellant does not contend the information gave

him insufficient notice of the offense with which he was charged, or that there is risk he

later will be prosecuted for driving on CR B while intoxicated. See Byrd, 336 S.W.3d at

248; Gollihar, 46 S.W.3d at 257 (both describing material variance between charging

instrument and proof); Meza v. State, No. 05-00-01710-CR,         2001 Tex.App. LEXIS

      4
         See Nevarez v. State, 503 S.W.2d 767, 769 (Tex.Crim.App. 1974); Truex v.
State, No. 05-10-00665-CR, 2011 Tex.App. LEXIS 34, at *4 (Tex.App.—Dallas Jan. 5,
2011, no pet.); 42 George E. Dix and John M. Schmolesky, TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE §§ 25.128, 25.156 (3d ed. 2011) (all so
indicating).

                                            8
7129, at *1 (Tex.App.—Dallas Oct. 24, 2001, no pet.) (mem. op., not designated for

publication) (applying Gollihar material variance test).


         Nor is there a failure of proof of the statutory element appellant was driving in a

public place. A public place is defined as "any place to which the public or a substantial

group of the public has access and includes, but is not limited to, streets, highways, and

the common areas of schools, hospitals, apartment houses, office buildings, transport

facilities, and shops." Tex. Penal Code Ann. § 1.07(a)(40) (West Supp. 2011). The

warden’s testimony showed appellant was driving on a county road at an intersection

with a paved road controlled by a stop sign. That evidence, and the video showing the

appearance of the “paved road,” allowed the jury to find appellant was driving in a public

place.


         The evidence of appellant’s guilt is not insufficient under either of the theories he

asserts. We overrule appellant’s first issue.


Jury Charge Error

         In appellant’s second and third issues, he challenges the trial court’s inclusion of

the State’s requested jury instruction, “You are instructed that you may consider the

Defendant’s refusal to submit to a breath test as evidence in this case.” Appellant

objected at trial and also included a challenge to the instruction in his motion for new

trial. He argued that the instruction was an impermissible comment by the trial court on

the weight to be given the evidence of the breath test refusal.




                                               9
      The function of the jury charge is to inform the jury of the applicable law and to

guide the jury in its application of the law to the case the jury must decide. Hutch v.

State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). Because judges are neutral arbiters

in the Texas adversarial system, the charge must not express any opinion as to the

weight to be accorded to the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14

(West 2007); Brown v. State, 122 S.W.3d 794, 797 (Tex.Crim.App. 2003). When

reviewing a jury charge, we first determine whether error exists and, if error does exist,

we address whether the harm caused by the error warrants reversal. Hutch, 922 S.W.2d

at 170-71.


      A person's refusal of a request by an officer to submit to the taking of a specimen

of breath or blood . . . may be introduced into evidence at the person's trial." Tex.

Transp. Code Ann. § 724.061 (West 1999); Hess v. State, 224 S.W.3d 511, 514

(Tex.App.—Fort Worth 2007, pet. ref’d). A comment by the prosecutor on the refusal is

permissible, Leija v. State, No. 04-08-00679-CR, 2009 Tex. App. LEXIS 923, 2009 WL

331897, at *3 (Tex. App.--San Antonio Feb.11, 2009, no pet.) (mem. op., not designated

for publication) (concluding that a prosecutor may comment on a refusal to submit to a

breath or blood test); Vargas v. State, 271 S.W.3d 338, 340 (Tex.App.—San Antonio

2008, no pet.) (same), and the State may summarize evidence as part of its jury

argument, which includes the failure to submit to a breath or blood test and that such

failure is evidence of intoxication. Leija, 2009 Tex. App. LEXIS 923, 2009 WL 331897,

at *3; Vargas, 271 S.W.3d at 341. However, a “jury instruction informing the jury that it

may consider evidence of a refusal to take a breath [or blood] test constitutes an

impermissible comment on the weight of the evidence." Bartlett v. State, 270 S.W.3d
                                           10
147, 154 (Tex. Crim. App. 2008). The court erred by including the instruction in its

charge.


      When the error is preserved, reversal is required if the error is "calculated to

injure the rights of defendant," meaning there must be some harm. Tex. Code Crim.

Proc. Ann. art. 36.19; Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App. 2003);

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). The

degree of harm must be considered 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.   Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000). In

analyzing harm under Almanza, neither the State nor the defense has a burden to show

harm. Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App. 2008).


      After reviewing the entire charge, the state of the evidence, the arguments of

counsel, and other relevant information, we find appellant suffered no harm from the

inclusion of the instruction. Unlike the lengthy instruction given in Bartlett, 270 S.W.3d

at 149, the instruction here consisted only of the one sentence we have quoted. The

refusal was not emphasized in the testimony and neither the erroneous instruction nor

appellant’s refusal to consent to the breath tests were mentioned in closing arguments.

Our conclusion appellant suffered no harm is consistent with that reached by other

courts considering similar instructions.      Helm v. State, 295 S.W.3d 780, 784

(Tex.App.—Fort Worth 2009, no pet.); Huckabay v. State, No. 09-09-00336-CR, 2011

Tex.App. LEXIS 1918, at *11 (Tex.App.—Beaumont March 16, 2011, no pet.) (mem.

                                           11
op., not designated for publication). We likewise find no abuse of discretion in the trial

court’s failure to grant appellant’s motion for new trial on this point. See, e.g., Smith v.

State, 286 S.W.3d 333, 339 (Tex.Crim.App. 2009) (review trial court’s ruling on motion

for new trial for abuse of discretion); Holden v. State, 201 S.W.3d 761, 763

(Tex.Crim.App. 2006) (same). We resolve appellant’s second and third issues against

him.


Appellant’s Requested Jury Instruction Under Article 38.23


       In his fourth issue, appellant contends the trial court erred in refusing to submit

his requested jury instruction under article 38.23. See Tex. Code Crim. Proc. Ann. art.

38.23 (West 2010). He contends fact issues existed concerning: (1) the legality of the

game warden’s initial traffic stop; (2) the reasonableness of the game warden’s

suspicion appellant was driving while intoxicated, and (3) the reasonableness of the

trooper’s suspicion appellant was driving while intoxicated, prior to the time the trooper

completed the field sobriety tests. Without a reasonable suspicion appellant was, or

had been, engaged in criminal activity, his continued detention by the warden and the

trooper for investigation of DWI would have been unjustified.         Davis v. State, 947

S.W.2d 240, 244-45 (Tex.Crim.App. 1997).


       To determine if omission of the requested instruction was error, we turn to

Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007). There, the Court of

Criminal Appeals set forth three requirements to obtain a charge pursuant to article

38.23: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence


                                            12
on that fact must be affirmatively contested; and (3) that contested factual issue must be

material to the lawfulness of the challenged conduct in obtaining the evidence.


       In his brief, appellant cites us to two instructions he requested. Although both

address the legality of the conduct of the warden and trooper during appellant’s

detention, we are unable to identify in either requested instruction a disputed issue of

historical fact.   Rather, like the rejected instruction in Madden, 242 S.W.3d at 511,

appellant’s requested instructions addressed the legal conclusions of reasonable

suspicion and probable cause. The trial court did not err in refusing to give them. We

overrule appellant’s fourth issue.


Jury Argument


       In his last issue, appellant argues the trial court erred in failing to grant his motion

for mistrial after the State argued in closing argument at the guilt-innocence stage that

the Texas Court of Criminal Appeals has taken judicial notice of the reliability of field

sobriety tests. The State said, “Our Court of Criminal Appeals, which is the highest

criminal court in the State of Texas, has taken judicial notice of the reliability--.” When

appellant objected, the prosecutor said, “It’s the law.” Appellant objected and the court

sustained his objection and provided to the jury an instruction to disregard the State’s

comment. The trial court denied appellant’s motion for mistrial.


       The purpose of closing argument is to assist the fact-finder in drawing proper

conclusions and inferences from the evidence. Gaddis v. State, 753 S.W.2d 396, 400

(Tex.Crim.App. 1988); Graves v. State, 176 S.W.3d 422, 431 (Tex. App.--Houston [1st

                                              13
Dist.] 2004, pet. stricken). Argument that (1) summarizes the evidence, (2) is a

reasonable deduction from the evidence, (3) answers argument of opposing counsel, or

(4) is a plea for law enforcement, is permissible and proper. See Brown v. State, 270

S.W.3d 564, 570 (Tex.Crim.App. 2008), cert. denied, 129 S. Ct. 2075, 173 L. Ed. 2d

1139 (2009). Argument that interjects facts not supported by the record is improper. See

id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex.Crim.App. 1988)). Generally, an

instruction to disregard cures any harm from improper argument. Wesbrook v. State, 29

S.W.3d 103, 115 (Tex. Crim. App. 2000). We presume the jury followed a trial court's

instruction to disregard. Id. at 116. We also presume the instruction was effective and

cured any prejudicial effect caused by the complained-of remarks. See id.; Sanders v.

State, 25 S.W.3d 854, 858 (Tex. App.--Houston [14th Dist.] 2000), pet. dism'd by, 56

S.W.3d 52 (Tex.Crim.App. 2001). "Only in extreme circumstances, where the prejudice

is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77

(Tex.Crim.App. 2004) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.

2003)).


      We review the denial of a motion for mistrial under an abuse of discretion

standard. Id. at 77; Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). We will

find the trial court abused its discretion when its decision falls outside the zone of

reasonable disagreement. Wead, 129 S.W.3d at 129. In determining whether the trial

court abused its discretion by denying the mistrial and should be reversed, we balance

three factors: (1) the severity of the misconduct, (2) curative measures, and (3) the

certainty of the punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at

77 (citing Martinez v. State, 17 S.W.3d 677, 693-94 (Tex.Crim.App. 2000)). In
                                          14
evaluating the severity of the misconduct, we assess "whether [the] jury argument is

extreme or manifestly improper [by] look[ing] at the entire record on final arguments to

determine if there was a willful and calculated effort on the part of the State to deprive

[the] appellant of a fair and impartial trial." Brown, 270 S.W.3d at 573 (quoting Cantu v.

State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997)).


        The State argues its argument was in response to appellant’s argument that

“These tests aren’t indicia of intoxication. What they are, indicia of whether somebody

can perform some type of artificial, made-up tests that have some validity.” Appellant

asserts the State “attempted to advise the jury that the highest criminal court in the

State of Texas had already stamped its approval of the reliability of standard field

sobriety tests in DWI cases.”       This, appellant contends, coupled with the State’s

comment that “It’s the law” and its second attempt to tell the jury the Court of Criminal

Appeals had taken judicial notice of the reliability of the test, rendered the court’s

instruction to disregard ineffectual.


        We disagree, and find the court’s prompt instruction to disregard cured any

impropriety in the State’s argument. See Wesbrook, 29 S.W.3d at 116. We resolve

appellant’s final issue against him.


        Having overruled each of appellant’s five issues, we affirm the judgment of the

trial court.

                                                       James T. Campbell
                                                            Justice

Do not publish.

                                            15
