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                                 MEMORANDUM OPINION

                                        No. 04-08-00263-CR

                                            Andrew PEREZ,
                                               Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the County Court at Law No. 11, Bexar County, Texas
                                     Trial Court No. 934031
                              Honorable Olin Strauss, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: April 15, 2009

AFFIRMED

           Andrew Perez was found guilty of racing on a highway. On appeal, he claims the evidence

is legally and factually insufficient to sustain his conviction. We find the evidence sufficient and

affirm the trial court’s judgment.
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                                      STANDARD OF REVIEW

       In a legal sufficiency review, we view the evidence in the light most favorable to the verdict

and then determine whether a rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005).

In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict

aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the

contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have

been met. Id. at 730-31.

                                          THE EVIDENCE

       Perez was charged with participating in a race on a highway. “Race” means the use of one

or more vehicles in an attempt to outgain or outdistance another vehicle or prevent another vehicle

from passing. TEX . TRANSP . CODE ANN . § 545.420(b)(2)(A) (Vernon Supp. 2008).

       The only witness at trial was Officer Nathan Sandoval, the officer who apprehended and

arrested Perez. Officer Sandoval testified that on August 8, 2005, he was returning to his substation

at the end of his day. As he merged onto the southbound lanes of I-35, he immediately noticed two

vehicles speeding excessively, “to the point to where they were making other vehicles seem as

though they were standing still.” The two vehicles were traveling southbound, one in front of the

other in the far left lane, or the passing lane. Officer Sandoval began to follow the vehicles.

Refreshing his memory with the offense report he completed on August 8, 2005, Officer Sandoval

stated that the front vehicle was a Pontiac van, driven by Perez. He did not remember what color it

was. According to Officer Sandoval, the second vehicle was a small four-door Ford Focus. The van

was in front of the Focus, and both vehicles were traveling at an excessive rate of speed. Both

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vehicles continued to maintain a close distance to each other. As Officer Sandoval accelerated his

patrol vehicle to one hundred miles an hour, he noted that the two vehicles also maintained that

amount of speed. Although Officer Sandoval did not have radar equipment, he was able to pace the

vehicles to verify the speed at ninety-five to one hundred miles an hour. Specifically, he testified that

he paced the second vehicle, the Focus. Again, referring to his report, Officer Sandoval testified there

was a medium amount of traffic at the time. According to Officer Sandoval, it did not appear that

the two vehicles were unrelated to each other, due to their close proximity as they were traveling at

that speed. He observed that the two vehicles “were apparently racing each other at the time.”

        Officer Sandoval concluded the two vehicles were apparently racing because they were both

going at a high rate of speed and maintaining a very close proximity to each other. Although he did

not include it in his report, Officer Sandoval remembered that the two vehicles separated for a brief

period of time and then came back together. That is, the two vehicles split for a very short period of

time, one going into the other lane, and then coming back together, one behind the other. They

appeared to want to outdistance or outgain one another, positioning themselves, one in front of the

other, as they continued forward. Officer Sandoval defined “close proximity” as about one or two

car lengths or forty or fifty feet.

        Officer Sandoval paced the vehicles for about a half a mile to three quarters of a mile before

activating his emergency lights and stopping both vehicles. He immediately placed Perez, the driver

of the van, under arrest for racing and reckless driving. In Officer Sandoval’s opinion, based on his

training and experience, Perez was racing by outgaining and outdistancing the other vehicle.




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                                             DISCUSSION

        In support of his legal insufficiency argument, Perez argues that the evidence only showed

Perez was driving and perhaps speeding in the “fast lane” designated for passing. He further points

out that the vehicles were not cutting across lanes of traffic and that the officer only observed them

for about a half mile. Additionally, Perez focuses on the officer’s memory, emphasizing that the

officer had to refer to his report to give a description of Perez’s vehicle and to identify which driver

he came into contact with first. Furthermore, Perez emphasizes that the officer could not remember

the color of Perez’s vehicle.

        To support his factual sufficiency argument, Perez again criticizes the officer for having to

refer to his offense report in order to testify. Perez notes that the officer only paced the Focus and

not his vehicle. He also argues the identity of his vehicle is in question because the officer could not

testify to the color of the vehicle. Perez further contends the officer observed the vehicles for too

short of a period of time for him to determine the drivers were committing an offense.

        We hold the evidence is both legally and factually sufficient to support the jury’s verdict.

Firstly, viewing the evidence in the light most favorable to the verdict, we note that Officer Sandoval

testified that Perez, driving a Pontiac van, and another vehicle were traveling at approximately one

hundred miles per hour, one behind the other, and maintaining close proximity to one another. Based

on his experience and his observations, he concluded the two vehicles were trying to outdistance or

outgain one another; that is, they were racing. Based on this evidence, the jury could have found the

essential elements of the offense of racing on a highway. Therefore, the evidence is legally sufficient.

        Secondly, viewing the evidence in a neutral light, we note that, as Perez points out, Officer

Sandoval did need to use his report to refresh his memory in testifying to the events surrounding

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Perez’s apprehension and arrest. However, the rules of evidence allow a witness to use a writing to

refresh memory for the purpose of testifying. See TEX . R. EVID . 612. And, although Officer Sandoval

was unable to testify to the color of Perez’s vehicle and only observed the two vehicles for one half

to three quarters of a mile, Perez is essentially attacking the jury’s credibility determination of

Officer Sandoval’s testimony. And the jury, not the appellate court, is the exclusive judge of the

witness’s credibility. See Johnson v. State, 23 S.W.3d 1, 8-9 (Tex. Crim. App. 2000). Viewing all

the evidence in a neutral light, we hold that the jury was rationally justified in finding guilt beyond

a reasonable doubt. Therefore, the evidence is factually sufficient.

       We affirm the trial court’s judgment.



                                                        Karen Angelini, Justice



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