                                      NO. 07-11-0502-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                          JULY 27, 2012


                                     MONTE JOE MARTIN,

                                                                    Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                    Appellee
                             _____________________________

           FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

           NO. 130,177-2; HONORABLE PAMELA COOK SIRMON, PRESIDING


                                    Memorandum Opinion


Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1

       Monte Joe Martin was convicted of driving while intoxicated. In three issues, he

seeks reversal of that conviction by contending 1) the evidence is legally insufficient to

sustain it, 2) there were insufficient facts to form a basis for any extrapolation testimony,

and 3) he received ineffective assistance of counsel. We affirm the judgment.




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       John T. Boyd, Senior Justice, sitting by assignment.
       Legal Sufficiency

       We review challenges to the legal sufficiency of the evidence under the standard

discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The State was

required to prove that appellant was intoxicated while operating a motor vehicle in a

public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2011). “Intoxicated” means

“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.” Id. § 49.01(2)(A) & (B) (West 2011). Appellant

was charged with being intoxicated under both theories.

       Appellant’s blood was drawn at the hospital at 6:06 p.m. after he wrecked the

vehicle in which he was driving. It was not tested for another hour, at which time it

showed a blood alcohol content of 0.08. The regional laboratory manager with the

Texas Department of Public Safety crime laboratory in Lubbock testified that, under the

State’s method of testing, the comparable result would have been 0.067. Appellant

contends the evidence was insufficient to show that he had an alcohol concentration in

his blood of 0.08 at the time he was driving.

       First, we note that the same chemist testified without objection that the

defendant’s blood alcohol concentration could have been 0.09 at the time he was

driving or at least 0.082 if the elimination rate for appellant was at the low end.

Moreover, even if this evidence was faulty as appellant contends, there was evidence

that 1) appellant drove around 90 m.p.h. on Highway 287 refusing to stop for a deputy,

passed vehicles on both the left and right shoulders with appellant dropping a tire off the

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road, suddenly slammed on his brakes, causing the officer to believe appellant was

trying to disable the officer’s vehicle, and wove in and out of traffic and straddled lanes,

2) appellant then drove through residential areas in Amarillo continuing to travel at a

high rate of speed of up to 60 m.p.h. and failing to use signal turns, slow down at yield

signs, or stop at stop signs, making unsafe lane changes, and swerving into oncoming

traffic, 3) appellant eventually rolled his vehicle near I-40 and Georgia, 4) appellant

talked to his niece while he was driving and told her that he had had a few drinks and

was a “tipsy” uncle, 5) after the crash, appellant smelled of alcohol on his breath, body,

and clothes, and had bloodshot, glassy eyes, 6) appellant had slurred speech, 7) an

open container of alcohol was found in appellant’s vehicle, 8) marijuana appeared in

appellant’s blood, and 9) an officer testified that appellant exhibited the signs of

someone “not within the normal mental, physical use of their abilities” and that it was his

opinion that appellant had consumed alcohol to a degree that his normal mental or

physical faculties had been impaired.

       Intoxication may be proved by circumstantial evidence, Smithhart v. State, 503

S.W.2d 283, 285 (Tex. Crim. App. 1973), and the testimony of a police officer regarding

a defendant’s behavior and the officer’s opinion that the defendant is intoxicated

provides sufficient support for a conviction. Zill v. State, 355 S.W.3d 778, 785-86 (Tex.

App.–Houston [1st Dist.] 2011, no pet.). Based on the above evidence, we conclude

that there is legally sufficient evidence of intoxication under the theory of impairment.

See Lopez v. State, 279 S.W.3d 727, 729-30 (Tex. App.–Amarillo 2007, no pet.) (finding

the evidence of impairment legally sufficient when several witnesses reported the

defendant driving erratically, swerving across the road, and bouncing off curbs with

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several near collisions, the defendant fled from a police officer, and the defendant

smelled of alcohol on his breath, had poor balance and coordination, and admitted

drinking).

          Admission of Extrapolation Evidence

          Appellant claims the trial court erred in permitting testimony with respect to his

level of intoxication at the time he was driving because there was no evidence as to his

individual characteristics such as weight, tolerance for alcohol, the amount of alcohol

consumed, what type of alcohol was consumed, the duration of drinking, the time of the

last alcoholic drink, and what he had to eat before, during, and after consumption.

Further, the hypothetical was based on the time the blood was actually tested as

opposed to collected without a showing as to how the blood might have been affected

during that hour. However, no objection was made to this testimony. The failure to do

so waived any error.       TEX. R. APP. P. 33.1(a)(1) (stating that to preserve error, a

complaint must be made to the trial court by timely request, objection or motion);

Schumacher v. State, 72 S.w.3d 43, 52 (Tex. App.–Texarkana 2001, pet. ref’d) (stating

that error in the admisison of evidence is waived by the failure to make an objection).

          Ineffective Assistance of Counsel

          Finally, appellant claims his counsel was ineffective by failing to object to the

extrapolation testimony. Nothing in the record shows counsel’s reason for failing to

object.     Without the same, we may not find that counsel was ineffective on direct

appeal. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).




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      Accordingly, all of appellant’s issues are overruled, and the judgment is affirmed.



                                               Per Curiam

Do not publish.




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