                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00485-CR


CHRISTOPHER DANIEL LANE                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      A jury found Appellant Christopher Daniel Lane guilty of driving while

intoxicated (DWI) with a child passenger and assessed his punishment at twenty-

two months’ confinement in state jail. See Tex. Penal Code Ann. § 49.045 (West

2011). The trial court sentenced him accordingly. In a single point, Lane argues

that the evidence was legally insufficient to prove that he was intoxicated.
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       See Tex. R. App. P. 47.4.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      At approximately 10:30 p.m. one night, Granbury Police Officer Richard

Branum saw a white truck turn right at an intersection without coming to a

complete stop at the red light. Officer Branum turned on his patrol lights, which

activated the video recorder in his patrol car, and stopped the truck. When he

made contact with the driver of the truck, Lane, the officer noticed that Lane’s

eyes were bloodshot and watery and could smell the odor of alcoholic beverage

on Lane’s breath.      Lane’s girlfriend, Joy Holder, and her thirteen-year-old

daughter, Tristan Sandifer, were passengers in the truck.

      Believing that Lane might be intoxicated, Officer Branum asked Lane to get

out of the truck. The officer testified that a Bud Ice beer bottle cap fell to the

ground when Lane stepped out, although this was not visible on the video.

Officer Branum conducted field sobriety tests on Lane. The officer observed six

out of six possible clues of intoxication from the HGN test,2 four clues on the

walk-and-turn test, and no clues on the one-leg-stand test.           Officer Branum

arrested Lane.

      On the drive to the jail, Lane called Officer Branum names and threatened

to “kick [his] ass” if he ever saw the officer out of uniform. At the jail, Lane pulled


      2
        Lane told Officer Branum that he had an eye injury from being recently hit
in the face with a beer bottle and complained of pain when Officer Branum had
Lane follow the officer’s finger with his eye. Officer Branum testified that he had
checked Lane’s eyes for equal tracking and equal pupil size prior to conducting
the horizontal gaze nystagmus (HGN) test to verify that he was a “candidate[].”


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down his pants and made comments to jail staff about them wanting to see his

penis and look in his rectum area, and about the size of his testicles. Lane bent

over, spread his “cheeks,” and asked the jail staff “if they wanted to look up there,

too.” After Lane refused a blood test, Officer Branum submitted paperwork for a

mandatory blood withdrawal and took Lane to the Lake Granbury Medical Center

for the blood draw. Thirty-four minutes after the traffic stop, a phlebotomist drew

Lane’s blood at the hospital. A forensic scientist for the Texas Department of

Public Safety Crime Lab analyzed Lane’s blood sample and determined that it

had an alcohol concentration of .15 grams per 100 milliliters of blood.

      At the trial, Officer Branum, the phlebotomist, and the forensic scientist

testified for the State, and the State introduced into evidence the videotape from

Officer Branum’s patrol car and the blood test results. During the punishment

stage of the trial, the State called Texas Department of Public Safety Trooper

Shane Neal, who testified about Lane’s previous arrest for DWI twenty-five days

prior to his arrest for the instant offense. Lane testified on his own behalf.

                             III. 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); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).


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      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).         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 factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

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

2793; Isassi, 330 S.W.3d at 638.

                         IV. SUFFICIENCY OF THE EVIDENCE

      Lane argues in one point that insufficient evidence exists to prove that he

was intoxicated. Specifically, he argues that the State did not present expert

testimony of retrograde extrapolation regarding the results of his blood-alcohol

test and that no other evidence logically raised an inference that he was

intoxicated at the time of driving.

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      The penal code defines intoxication as either “not having the normal use of

mental or physical faculties by reason of the introduction of alcohol” (the

impairment theory) or “having an alcohol concentration of 0.08 or more” (the per-

se theory). Tex. Penal Code Ann. § 49.01(2) (West 2011). The State is required

to prove only one of these definitions of intoxication. See Bagheri v. State, 119

S.W.3d 755, 762 (Tex. Crim. App. 2003). The court of criminal appeals has

explained,

      BAC-test results, even absent expert retrograde extrapolation
      testimony, are often highly probative to prove both per se and
      impairment intoxication. However, a BAC-test result, by itself, is not
      sufficient to prove intoxication at the time of driving. There must be
      other evidence in the record that would support an inference that the
      defendant was intoxicated at the time of driving as well as at the time
      of taking the test. . . . Other evidence that would logically raise an
      inference that the defendant was intoxicated at the time of driving as
      well as at the time of the BAC test includes, inter alia, erratic driving,
      post-driving behavior such as stumbling, swaying, slurring or
      mumbling words, inability to perform field sobriety tests or follow
      directions, bloodshot eyes, any admissions by the defendant
      concerning what, when, and how much he had been drinking—in
      short, any and all of the usual indicia of intoxication.

Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010); see Stewart v.

State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).

      Here, the jury charge contained only the impairment theory of intoxication,

and the State relied on that theory at trial.     Lane points to Officer Branum’s

testimony that Lane did not demonstrate any clues on the one-leg-stand test and

only a “few clues” on the walk-and-turn test, that Lane was not speeding or

weaving while driving, and that he pulled his truck over “immediately and without



                                          5
incident when the officer signaled him to pull over.” But under the applicable

standard of review, viewing all of the evidence in the light most favorable to the

verdict, a rational trier of fact could have found beyond a reasonable doubt that

Lane was intoxicated when Officer Branum stopped him. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The results of Lane’s blood-

alcohol test showed that his blood-alcohol concentration was more than twice the

legal limit thirty-four minutes after the stop.     See Tex. Penal Code Ann. §

49.01(2)(B). Even without retrograde extrapolation, the results are probative and

relevant under the impairment theory of intoxication because they “‘tend to make

it more probable that [Lane] was intoxicated at the time of driving.’” Kirsch, 306

S.W.3d at 744 (quoting State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App.

2005)); Stewart, 129 S.W.3d at 96; Williams v. State, 307 S.W.3d 862, 868 (Tex.

App.—Fort Worth 2010, no pet.). Moreover, Officer Branum testified that Lane

had bloodshot, watery eyes, that an odor of alcoholic beverage was coming from

his breath, that a beer bottle cap fell from Lane’s truck when he got out, and that

he exhibited several clues of intoxication during the field sobriety tests. See

Kirsch, 306 S.W.3d at 745.          Officer Branum testified that, based on his

observations of Lane, he believed that Lane had lost the normal use of his

mental and physical faculties by reason of introduction of alcohol into his system.

See Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d) (“The testimony of a police officer that an individual is intoxicated

is probative evidence of intoxication.”).      According to the court of criminal


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appeals, Lane’s refusal to provide a blood sample also tends to show a

consciousness of guilt on his part. See Bartlett v. State, 270 S.W.3d 147, 153

(Tex. Crim. App. 2008) (“Evidence of the [defendant’s] refusal to submit to a

breath test . . . tends to show a consciousness of guilt on his part.”); see also

Tex. Transp. Code. Ann. § 724.061 (West 2011) (providing that refusal to give

blood specimen is admissible at trial). Viewing the evidence in the light most

favorable to the verdict, as we must, we hold that the evidence is sufficient to

support Lane’s conviction for DWI with a child passenger, and we overrule his

sole point. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d

at 638.

                                 V. CONCLUSION

      Having overruled Lane’s sole point, we affirm the trial court’s judgment.



                                                   SUE WALKER
                                                   JUSTICE


PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: July 19, 2012




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