                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-228-CR


MARCUS MCDONALD                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Marcus McDonald appeals his conviction for felony driving

while intoxicated (DWI).       In his sole point, McDonald complains that the

evidence is factually insufficient to support the jury’s verdict. We will affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                              I. B ACKGROUND F ACTS

      On September 2, 2006, Officer Nathan Coomer of the Grand Prairie Police

Department received a dispatch call regarding a possibly intoxicated driver

traveling westbound on I-20 in a black Ford SUV. Officer Coomer responded

to the call and turned on his mobile video unit in his patrol car once he located

the described vehicle.

      Officer Coomer observed the driver, McDonald, turn on his right blinker,

turn it off, turn on his left blinker, attempt to move into the left lane, and then

exit right at Great Southwest Parkway with his left blinker still on. Officer

Coomer then observed McDonald move from side to side down the exit ramp.

McDonald then made a “normal” turn into a parking lot and into a parking space

at a convenience store. Officer Coomer testified that this occurred in light to

moderate traffic.

      Officer Coomer asked McDonald to roll down his window and detected

alcohol on McDonald’s breath.2 He also noticed that McDonald’s eyes were

bloodshot and watery. McDonald told Officer Coomer that he had not had




      2
       … Officer Coomer testified that he detected the odor of alcohol even
though he had to stand a “good distance” from McDonald because of a curb
next to the car and deduced that the odor must have been fairly substantial to
reach that far.

                                        2
anything to drink that night and handed his driver’s license to Officer Coomer

with no problems.

      At this time, Officer Coomer called Officer Michael Diaz to complete the

investigation so that, if necessary, he could respond to other calls on the busy

Labor Day weekend. Officer Diaz is a Drug Recognition Expert, a position that

he obtained through a two-week training program in which he studied and

evaluated the effects of various drugs, including alcohol, on the human body.

On the night of the offense, the Grand Prairie Police Department had employed

Officer Diaz to work on a specialized DW I enforcement unit that the Texas

Department of Transportation funds during peak times for alcohol-related

collisions, usually around holidays. Officer Coomer remained at the scene as

a “cover officer,” ensuring that the area remained safe during the completion

of the interview.

      When he arrived at the scene, Officer Diaz asked McDonald to step out

of the car. When he came into contact with him, he noticed that McDonald’s

eyes were bloodshot and watery. He also detected a faint odor of alcohol that

was masked by mint gum.3 Officer Diaz asked McDonald to spit out his gum,

but McDonald refused. Officer Diaz testified that he also noticed a circular


      3
      … Officer Coomer testified that McDonald did not have anything in his
mouth to mask the smell of alcohol when he first came into contact with him.

                                       3
sway when he asked McDonald to put his feet together, which Officer Diaz

stated was an indicator of intoxication.

      Officer Diaz asked McDonald if he had suffered any injuries to his neck

or back, and McDonald replied that he had “all those problems,” explaining that

he had suffered injuries while playing football.4 Officer Diaz then attempted to

administer the horizontal gaze nystagmus (HGN) test, but McDonald told him

that he could not follow the light because of his injuries. When Officer Diaz

told him that he did not need to move his neck, only his eyes, McDonald still

maintained that he could not perform the test. McDonald continued to refuse

to take the test, reiterating that he had neck injuries and stating that he wore

contact lenses. Officer Diaz testified that McDonald was extremely agitated

throughout this process.

      At that time, Officer Diaz confirmed with Officer Coomer that McDonald

had alcohol on his breath when he initiated the stop and then effectuated the

arrest. Officer Diaz handcuffed McDonald and attempted to search his person

for weapons. Officer Diaz testified that he felt McDonald moving his arms


      4
        … Officer Coomer recalled that McDonald had told him that he suffered
the injuries playing football in high school. We could not discern what exactly
McDonald said during their conversation about the injuries because of the audio
quality on the video. Officer Coomer also stated that he thought McDonald
was a “fit human being” and that he had no reason not to believe that
McDonald had played football and suffered “some kind of injuries.”

                                       4
during the search, leading him to believe that McDonald did not want him to see

something in his pockets. After telling McDonald twice to stop moving, Officer

Diaz forcefully transported him to the hood of the police car. There, Officer

Diaz completed his search, found no weapons, and placed McDonald in the

police vehicle.5 The officers then searched McDonald’s car and found a cup

with approximately one inch of clear tinted liquid.     Officer Diaz tested the

ambient air above the liquid using a portable breath test, and the air tested

positive for alcohol.

      Once at the police station in the DWI interview room, Officer Diaz handed

McDonald a piece of paper and asked McDonald to follow along with him as he

read to McDonald his Miranda warnings and statutory rights regarding the

breathalyzer and blood test.6 Instead of listening to Officer Diaz, McDonald

proceeded to read the rights and warnings aloud, by himself. After he finished,

Officer Diaz re-read the rights and warnings to McDonald. McDonald then

began to yell at Officer Diaz and call him offensive names, repeatedly stating




      5
       … After placing McDonald in the police vehicle, Officer Diaz took the
video from Officer Coomer’s vehicle and placed it in his vehicle so that he could
have coverage of the initial stop and the transportation all on one video. The
jury reviewed the video at trial.
      6
       … See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); T EX.
T RANSP. C ODE A NN. § 724.015 (Vernon Supp. 2008).

                                       5
that he had already read the information. McDonald refused the breathalyzer

test and later attempted to walk out of the interview room.          Officer Diaz

described McDonald’s behavior as “cyclic,” meaning that McDonald started off

calm and then his temper escalated to the point where he began to yell and act

“unruly.” 7   Officer Diaz testified that he considered McDonald’s belligerent

behavior to be an additional sign of intoxication.

      McDonald did not testify or question any of his own witnesses; therefore,

the evidence at trial consisted only of the officers’ testimony as well as the

video of the arrest and of the events that occurred in the interview room.

      McDonald was charged with felony DWI because he had been twice

convicted of DWI prior to his arrest on September 2, 2006. See T EX. P ENAL

C ODE A NN. § 49.09(b)(2) (Vernon Supp. 2008).           The jury found McDonald

guilty, and the trial court assessed punishment at six years’ confinement.

                             II. F ACTUAL S UFFICIENCY

      In his sole point, McDonald complains that the evidence presented at trial

is factually insufficient to support the jury’s verdict.




      7
       … The events in the DWI interview room were also recorded and played
for the jury.

                                         6
      A.    Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

                                        7
the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      B.    Driving While Intoxicated

      A person commits the offense of driving while intoxicated if he operates

a motor vehicle while intoxicated in a public place.     T EX. P ENAL C ODE A NN.

§ 49.04 (Vernon 2003). Here, the indictment alleged that McDonald operated

a motor vehicle while intoxicated by not having the normal use of his mental or

physical faculties by reason of introduction of alcohol into his body. See id.

§ 49.01(2)(A).

      McDonald first argues that the evidence is so weak as to undermine the

confidence in the jury’s verdict. We disagree. An arresting officer’s testimony

is probative evidence of intoxication. See Henderson v. State, 29 S.W.3d 616,

                                        8
622 (Tex. App.— Houston [1st Dist.] 2000, pet. ref’d).          Here, two police

officers testified that, in their opinions, McDonald was intoxicated as he

operated a motor vehicle. Officer Coomer, who initially stopped McDonald,

testified that he formed his opinion that McDonald was intoxicated based on

McDonald’s driving behavior, the odor of alcohol on his breath, his bloodshot

and watery eyes, his demeanor, the fact that he swayed when he attempted

to stand still, his attempt to mask the odor of his breath by putting gum in his

mouth, and by making up “absurd excuses” for not taking the HGN test.

Similarly, Officer Diaz, an expert in drug recognition, testified that, at the time

of the arrest, he concluded that McDonald was intoxicated based on his

bloodshot and watery eyes, his driving behavior relayed to him by Officer

Coomer, his demeanor, his refusal to perform the HGN test because of alleged

neck injuries, and the odor of alcohol on McDonald’s breath masked by gum,

which Officer Diaz stated is usually an indicator that someone is trying to hide

alcohol on his breath. Officer Diaz also testified that when he first questioned

McDonald about where he had come from, McDonald stated that he had left his

girlfriend’s house and was going to his wife’s house. When he asked him a

second time, McDonald stated that he was coming from his wife’s house.

Officer Diaz testified that McDonald’s trouble with understanding the question

was another indicator of McDonald’s intoxication.

                                        9
      Additionally, the jury could have taken McDonald’s refusal to take the

breathalyzer test as evidence of his guilt.        See T EX. T RANSP. C ODE A NN.

§ 724.061 (Vernon 1999); Finley v. State, 809 S.W .2d 909, 913 (Tex.

App.—Houston [14th Dist.] 1991, writ ref’d) (holding that the jury can use the

defendant’s refusal to take a breathalyzer test as evidence of guilt). Likewise,

the jury could have inferred that McDonald was intoxicated by his refusal to

perform the HGN test. See Barraza v. State, 733 S.W .2d 379, 381 (Tex.

App.—Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990)

(stating that “a request to perform a field sobriety test is sufficiently similar to

a request to perform a breathalyzer test so as to allow an analogy to the law

governing the admissibility of evidence of a suspect’s refusal to take a

breathalyzer test”). In making such an inference, the jury, as the fact-finder,

was entitled to either believe or disbelieve that McDonald had suffered neck

injuries, or it could have chosen to believe Officer Diaz when he testified that

the HGN test does not require a person to move his neck.            There was no

testimony regarding how the use of contact lenses would affect, if at all,

McDonald’s ability to perform the HGN test.

      Further, there is evidence that McDonald had a cup in his car with one

inch of liquid that contained alcohol.     The jury also had the opportunity to

review the video and personally observe the circumstances that the officers

                                        10
stated formed the basis of their opinions, including McDonald’s driving

behavior, his swaying, and his demeanor before and after his arrest. 8

      Accordingly, in viewing all the evidence in a neutral light, we cannot say

that the evidence is so weak that the jury’s determination is clearly wrong and

manifestly unjust. See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim.

App. 1985) (stating that evidence of intoxication may include, among other

things, slurred speech, bloodshot eyes, odor of alcohol on the person or breath,

and unsteady balance); Dukes v. State, No. 02-07-00053-CR, 2008 WL

902787, at *4 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op.) (not

designated for publication) (holding that the evidence was factually sufficient

when it showed, among other things, that the defendant’s speech was slurred,

his eyes were bloodshot and watery, he refused the breathalyzer test, and the

arresting officer found a three-quarters empty beer can that was “cool to the

touch” under the driver’s seat); see also Cloud v. State, No. 14-07-00847-CR,

2008 WL 2520826, at *2 (Tex. App.—Houston [14th Dist.] June 24, 2008,

no pet.) (mem. op.) (not designated for publication) (holding that the evidence

was factually sufficient when the arresting officer testified that the defendant


      8
       … We have reviewed the video, and the officers’ testimony regarding
McDonald’s driving behavior and demeanor are supported by the video. It also
appears that McDonald swayed slightly as he stood with his feet together, but
the viewing angle of the video makes it hard to discern this fact.

                                      11
smelled of alcohol, had bloodshot eyes, had slurred speech, refused to perform

any field sobriety test, and refused the breathalyzer test).

      McDonald argues next that the evidence contrary to the verdict

demonstrates that he was not intoxicated and explains his unruly demeanor.

He first points to evidence showing that he made a normal turn into the

convenience store, produced his driver’s license without a problem, exited his

vehicle in an appropriate manner, and spoke to the officers in a normal manner.

He also asserts that he did not commit a major traffic violation given the light

to moderate traffic and that his bloodshot eyes could have been attributed to

the fact that the stop occurred at 12:46 a.m. Additionally, he contends that

alcohol did not cause his unruly demeanor; rather, Officer Diaz agitated him

when he placed him on top of the hood of the car, causing him to yell at and

to not cooperate with the officers.

      We first note regarding McDonald’s demeanor that Officer Diaz testified

that it was possible McDonald could have become agitated when he forcefully

placed him on the car; however, he went on to state that McDonald was

“screaming and yelling” before he placed McDonald on the car. Further, we

must give due deference to the fact-finder’s determinations regarding

McDonald’s demeanor and all other matters that McDonald points to in his

argument. See Johnson, 23 S.W.3d at 8. Even taking the facts singled out by

                                       12
McDonald into consideration, we cannot say, given all the facts presented at

trial as described above, that the great weight and preponderance of the

evidence contradicts the verdict. See Watson, 204 S.W.3d at 414–15. Thus,

when viewed in a neutral light, the evidence is not too weak to support a

finding of guilt beyond a reasonable doubt and any evidence contrary to the

verdict does not greatly outweigh the evidence supporting the conviction.

Therefore, we hold that the evidence is factually sufficient to support the jury’s

verdict and overrule McDonald’s sole point.

                                 IV. C ONCLUSION

      Having overruled McDonald’s sole point, we affirm the trial court’s

judgment.




                                            PER CURIAM

PANEL: HOLMAN, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 27, 2008




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