                                 MEMORANDUM OPINION

                                        No. 04-08-00701-CR

                                         Dana Lynn DAVIS,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                         From the County Court at Law, Kerr County, Texas
                                   Trial Court No. CR-06-1692
                           Honorable Spencer W. Brown, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

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

Delivered and Filed: June 24, 2009

AFFIRMED

           Appellant Dana Lynn Davis was convicted by a jury for the offense of driving while

intoxicated. On appeal, Davis asserts the evidence is legally and factually insufficient to support

the conviction. We affirm the judgment of the trial court.

                                      FACTUAL BACKGROUND

           On January 31, 2006, Appellant Davis was seen driving her vehicle erratically. As she

traveled through Kerr County, a witness saw Davis (1) weave across the roadway from shoulder
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to shoulder, (2) rear-end another vehicle without stopping, and (3) eventually veer off the road

and roll down an embankment. The officers on the scene testified that Davis was disoriented,

exhibited slow, slurred speech, and her eyes were glassy, red, and bloodshot. Furthermore,

Davis did not appear to know that she had been involved in any accident. At trial and on appeal,

Davis asserts her behavior was a result of: her being very tired at the time of the accident, her

emotional state after the accident, and her concussion from the rollover accident.

                                  DRIVING WHILE INTOXICATED

       Davis contends that the testimony at trial negates the jury’s conclusion that she was

driving while intoxicated. The State responds that direct evidence proved Davis’s loss of normal

use of her mental or physical faculties and that circumstantial evidence proved Davis’s loss was

by reason of her ingestion of alcohol.

A. Elements of the Offense

       A person commits the crime of driving while intoxicated (DWI) “if the person is

intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE

ANN. § 49.04(a) (Vernon 2003). The Texas Penal Code defines “intoxicated” as

       (A) 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
       (B) having an alcohol concentration of 0.08 or more.

TEX. PENAL CODE ANN. § 49.01(2) (Vernon 2003).              Davis does not dispute that she was

operating a motor vehicle in a public place. We must, therefore, determine whether the evidence

sufficiently demonstrates that Davis was intoxicated by “not having the normal use of [her]

mental or physical faculties [due to] the introduction of alcohol . . . into [her] body.” See id.




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       A person’s failure to have the normal use of her mental or physical faculties may be

proven by circumstantial evidence. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex. Crim.

App. 1973). Additionally, when considering the intoxication element, erratic driving and a

collision are instances of impaired judgment that can be sufficient to establish that a driver did

not have the normal use of her mental faculties. Chaloupka v. State, 20 S.W.3d 172, 175 (Tex.

App.—Texarkana 2000, pet. ref’d).

B. Legal Sufficiency

       1. Standard of Review

       When a party attacks the legal sufficiency of the evidence, we review all 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 (1979); accord Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App.

2005). Moreover, when faced with conflicting evidence, we presume the trier of fact resolved

conflicts in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (en

banc); Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).

       2. Evidence Presented

       The State’s case relied on the testimony and evidence solicited from four different

witnesses. Tony Gonzales testified that as he left work, he noticed Davis in her vehicle, at an

intersection, and that she appeared to be asleep behind the wheel. Gonzales explained that Davis

was stopped at a green light for an extended period of time, with her head down, against her

chest. When Davis began to drive, Gonzales testified that she proceeded to turn right and hit the

curb, causing her to swerve immediately to the other side of the road and into oncoming traffic.

Gonzales further relayed that, at that point, he first contacted 911. Gonzales proceeded to follow




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Davis as she “swerved back and forth” and made a series of sharp turns. According to Gonzales,

Davis continued to drive “all over the road”—from the shoulder on the right, past the road, and

into the oncoming traffic on her left.

       Gonzales further testified that Davis, after entering IH-10, exceeded speeds of eighty or

eighty-five miles per hour and then slowed to thirty miles per hour, “at least eight to ten times.”

Davis continued to travel from one shoulder and across to the other shoulder, even hitting a

guardrail over one of the bridges and the grass on the shoulder a couple of times. Gonzales also

witnessed Davis drive into the back of another vehicle, shattering the rear windshield on the

vehicle, and continue to travel down IH-10. Thereafter, Gonzales witnessed Davis swerve off

the shoulder of the road, completely rolling her vehicle.

       Sergio De La Rocha, the driver of the vehicle hit by Davis, testified that he saw Davis’s

vehicle approach through his rear-view mirror just before his car was hit.          De La Rocha

explained he was traveling approximately sixty miles per hour at the time of the accident. When

Davis did not stop, De La Rocha followed her vehicle in order to obtain the license plate number.

       Kerr County Deputy Eric Piper arrived shortly after the rollover accident. He first

verified that Davis was uninjured. After Davis was out of her vehicle, Deputy Piper noted that

she appeared disoriented, had bloodshot and glassy eyes, used slow, slurred speech and that she

was using her vehicle for balance. Texas Department of Public Safety Trooper Adam Sweaney,

the officer assigned to work the rollover accident, also testified before the jury. He described

Davis as disoriented and unsteady on her feet, and as having red, bloodshot, glassy eyes, and

slurred speech. He also testified that she smelled of alcohol. Trooper Sweaney testified that

Davis did not appear to know that she had been in an accident and, when requested, refused both

field sobriety tests and a breathalyzer test. During Trooper Sweaney’s testimony, the jury saw a




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videotape of the incident taken from Trooper Sweaney’s patrol vehicle. Thus, the jury viewed

Davis’s demeanor, emotional state, and refusal to cooperate with the officers. See Compton v.

State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003, pet. ref’d) (concluding the evidence

was legally and factually sufficient to support a DWI conviction when the jury heard the

trooper’s testimony surrounding the stop and viewed the video-recording of the appellant’s

performance of field sobriety tests).

       The defense presented evidence from Davis’s mother that Davis suffered a concussion

during the rollover accident and from Sue Beth Gibson, a friend of the family, that Davis had

only had one, maybe two, glasses of wine over a three or four hour period before the incident.

Additionally, Gibson testified that Davis left her residence sometime after 9:30 p.m. and that the

accident occurred approximately an hour later.

       3. Analysis

       Davis challenges the evidence described above by pointing to evidentiary conflicts,

which we presume the jury resolved in favor of the State. See Turro, 867 S.W.2d at 47; Fuentes,

991 S.W.2d at 271. More specifically, Davis emphasizes the “glaringly inconsistent” testimony

by the officers about whether Davis smelled of alcohol. Deputy Piper did not note any odor of

alcohol on Davis while Trooper Sweaney testified that Davis smelled of alcohol. Because the

conflict ultimately calls into question the officers’ credibility, it is an issue solely within the

province of the jury. See Fuentes, 991 S.W.2d at 271; Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986).       Moreover, the witnesses’ observations regarding Davis’s slurred

speech, bloodshot eyes, unsteady balance, and disorientation all constitute evidence of

intoxication. See Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim. App. 1985) (enumerating

a nonexclusive list of signs recognized as evidence of intoxication, including odor of alcohol on




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person or breath, drowsiness, unsteady balance, staggered gait, slurred speech, and bloodshot

eyes). Indeed, the testimony of Trooper Sweaney is sufficient, as a matter of law, to substantiate

the element of intoxication. See Little v. State, 853 S.W.2d 179, 183 (Tex. App.—Corpus Christi

1993, no pet.) (“The uncorroborated testimony of an arresting officer is sufficient to prove the

element of intoxication.”).

       The direct evidence recited above was legally sufficient for the jury to form a firm

conviction or belief that Davis did not have the normal use of her mental or physical faculties.

We, therefore, overrule Davis’s legal sufficiency challenge.

C. Factual Sufficiency

       1. Standard of Review

       In a factual sufficiency review, we review of all the evidence in a neutral light and set

aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust; or (2) the verdict is against the great weight and preponderance of the

evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Johnson v. State,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot declare that a conflict in the evidence

justifies a new trial simply because we disagree with the jury’s resolution of that conflict, and we

do not intrude upon the fact-finder’s role as the sole judge of the weight and credibility of

witness testimony. See Watson, 204 S.W.3d at 417.

       2. Analysis

       Davis highlights the following evidence in support of her contention that the evidence

was factually insufficient to support a finding of intoxication:

       (1) Davis’s extreme emotional state, described by the testimony as hysterical
           accounts for her glassy, bloodshot eyes;
       (2) the fact that she was exhausted after a long day as an explanation of her “bad
           driving”; and


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         (3) the concussion she suffered, as a result of the rollover accident, as the reason
             for her disorientation and unsteady balance.

The jury, however, was free to reject Gibson’s testimony that Davis only had two glasses of wine

on the night in question and that Davis was not impaired when she left her home. Furthermore,

the jury could conclude that Davis’s behavior was the product of intoxication, rather than a

product of her physical ailments or emotional state. Consequently, we cannot say that the

evidence is so weak that the verdict is clearly wrong and manifestly unjust, or against the great

weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d

at 11.

                                           CONCLUSION

         Although Davis did not take any field sobriety tests, there was evidence that Davis was

weaving all over the road, had bloodshot eyes, was slurring her speech, and was stumbling as she

exited her vehicle on the night in question.           The jury had evidence upon which it could

reasonably conclude Davis was guilty of the charged offense. Furthermore, we cannot say this

appellate record leads us to conclude that a rationale jury could not have found the essential

elements beyond a reasonable doubt or that the jury’s verdict was manifestly unjust, or against

the great weight and preponderance of the evidence. We, therefore, conclude the evidence was

both factually and legally sufficient to find that Davis operated a motor vehicle in a public place

while intoxicated. Accordingly, we affirm the judgment of the trial court.


                                                   Rebecca Simmons, Justice


DO NOT PUBLISH




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