                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS


                                                 §
 ALYSHA SMITH
 AKA: ALICIA SMITH                               §               No. 08-10-00147-CR

                   Appellant,                    §                  Appeal from the

 V.                                              §         County Criminal Court No. Two

 THE STATE OF TEXAS,                             §             of El Paso County, Texas

                   Appellee.                     §               (TC# 20090C08139)

                                                 §


                                          OPINION

       Appellant appeals her conviction for the offense of driving while intoxicated. On appeal,

Appellant complains there is insufficient evidence to support her conviction, and that the trial

court erred in refusing to grant her motion for directed verdict on the grounds that the evidence is

legally insufficient. We affirm.

       On July 7, 2009, Deputies Joel Padilla and Cesar Paredes were conducting traffic control

at the scene of a motor vehicle accident when they saw Appellant’s vehicle pass by their location.

As Deputy Padilla “[waved] the vehicles through,” Appellant’s vehicle caught his attention

because it slowed down, and Appellant rolled down her window, despite the deputy’s demand for

her to keep going. After Appellant’s vehicle departed the site, the two deputies continued to

conduct traffic control, and while waiting for a wrecker to pick up the vehicle involved in the

accident, they received another dispatch call, which indicated that there was a stalled vehicle at
the 400 block of East Vinton.1 When Deputy Padilla arrived at East Vinton, he observed

Appellant’s vehicle in the middle of the road, “off to its side.” Upon arriving at the scene, the

fire officer on site related to Deputy Padilla what he had observed, and then Deputy Padilla

approached Appellant’s vehicle from the driver’s side, whereas Deputy Paredes approached the

passenger’s side. When Deputy Padilla asked Appellant what was wrong, she answered that her

boyfriend had grabbed the vehicle’s wheel, and had removed the keys from the vehicle’s ignition.

Once Deputies Padilla and Paredes began talking to Appellant, they noticed a strong odor of

alcohol emitting from her breath and person, that Appellant’s speech was slurred, and that she

had red, bloodshot eyes. Based on Appellant’s statement, the deputies identified the passenger

inside her vehicle as her boyfriend, who was highly intoxicated, had vomited all over himself,

and was passed out. Upon asking Appellant whether she had been drinking, she replied, “yes,”

and then Deputy Padilla asked her to step outside of her vehicle. As she exited the vehicle, she

was not able to maintain her balance, and almost fell down, so Deputy Padilla had to grab her

upper right arm to steady her. The deputy then escorted Appellant to the rear of her vehicle, and

he observed Appellant stagger as she walked to the back of it. When Appellant reached the back

of the vehicle, Deputy Padilla asked her to put her hands on the trunk, and informed her that she

was being arrested for driving while intoxicated. After Deputy Padilla placed handcuffs on

Appellant and started escorting her to his patrol unit, Appellant began using force to pull away

from him, and became belligerent and aggressive towards him. Several officers helped Deputy

Padilla place Appellant inside his patrol unit, but Appellant continued to resist. Appellant yelled



       1
         The 400 block of East Vinton was approximately a half mile away from the motor
vehicle accident site.

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profanities at the officers, and attempted to kick, bite, and spit at them. While inside the patrol

unit, Appellant kicked the doors and windows, and so the officers decided to take her out for fear

that she would hurt herself or damage the unit. The officers eventually carried Appellant to the

nearest police station because she refused to walk on her own, and they placed Appellant inside a

holding cell there.

       The information charged Appellant with the Class B misdemeanor offense of “DRIVING

WHILE INTOXICATED,” and stated that “ON OR ABOUT THE 7TH DAY OF JULY, 2009 . .

. DEFENDANT, WHILE OPERATING A MOTOR VEHICLE IN A PUBLIC PLACE, WAS

INTOXICATED TO WIT: BY NOT HAVING THE NORMAL USE OF MENTAL AND

PHYSICAL FACULTIES BY REASON OF THE INTRODUCTION OF ALCOHOL INTO

THE BODY.” At the conclusion of trial, the jury convicted Appellant of the charged offense,

and assessed her punishment at imprisonment in the County Jail for a period of thirty days,

probated for two years, and a fine of $500. Appellant subsequently appealed the judgment and

sentence.

       In Issue One, Appellant argues the evidence is legally insufficient to support her

conviction for driving while intoxicated. In Issue Two, Appellant argues the evidence is

factually insufficient to support her conviction for driving while intoxicated. However, since

Appellant’s brief was filed, the Texas Court of Criminal Appeals has ruled that the only standard

applicable to determine whether the evidence is sufficient to support each element of a criminal

offense is the Jackson v. Virginia legal sufficiency standard. See Brooks v. State, 323 S.W.3d

893, 895 (Tex.Crim.App. 2010)(holding that “the Jackson v. Virginia legal-sufficiency standard

is the only standard that a reviewing court should apply in determining whether the evidence is


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sufficient to support each element of a criminal offense . . . .”). Therefore, in the interests of

justice, and in light of the Brooks decision, we will construe Issue Two as a challenge to the legal

sufficiency of the evidence. See id. In Issue Three, Appellant argues the trial court erred in

denying her motion for instructed verdict on the grounds that the evidence is legally insufficient

to support her conviction for driving while intoxicated. Appellant’s third issue is in reality a

challenge to the legal sufficiency of the evidence supporting her conviction, and so we will apply

the standard of review applicable to a legal sufficiency challenge. See Hopper v. State, 86

S.W.3d 676, 678 (Tex.App.--El Paso 2002, no pet.). Because all three issues Appellant raises are

based on a legal sufficiency analysis, we will address all of the issues together.

       A legal sufficiency review requires the appellate court to determine whether,

“[c]onsidering all of the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt.” Id. at 899, citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting this review, we must

defer to the jury’s role as the sole judge of the credibility and weight that testimony is to be

afforded. Id. at 899.

       On appeal, Appellant does not dispute that the State failed to prove any elements to

support a conviction for DWI, except for the element of driving while intoxicated. Appellant

cites to McCafferty v. State, 748 S.W.2d 489 (Tex.App.--Houston [1st Dist.] 1988, no pet.), to

support her argument that “an accused having been intoxicated at the time the police arrived does

not in itself prove such intoxication at the prohibited time, i.e, when the accused was driving.”

Appellant claims that McCafferty “held that proof that amounts only to a strong suspicion or

mere probability in [sic] insufficient. In both direct and circumstantial cases the standard of


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review is whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” We first note that the First Court of Appeals in McCafferty

employed the “reasonable hypothesis” analytical construct in that case in concluding that there

was insufficient evidence to support the defendant’s DWI conviction, but this construct no longer

applies because it has been abrogated by Geesa v. State, 820 S.W.2d 154, 160-61(Tex.Crim.App.

1991). The State is no longer required to negate every reasonable hypothesis other than the one

establishing a defendant’s guilt, and is required only to establish that guilt beyond a reasonable

doubt. Geesa, 820 S.W.2d at 155. Furthermore, appellate courts now apply the same legal

sufficiency analysis to cases proved by either circumstantial or direct evidence, and a conviction

can be supported entirely by circumstantial evidence. See Geesa, 820 S.W.2d at 160-61.

       A person commits an offense of driving while intoxicated if she is intoxicated while

operating a motor vehicle in a public place. TEX .PEN .CODE ANN . § 49.04(a)(West 2011). Such

an offense is a Class B misdemeanor, with a minimum confinement term of 72 hours. Id. at

§ 49.04(b). For evidence to be sufficient to support a conviction for driving while intoxicated,

there must be a temporal link between the defendant’s intoxication and her driving. Kuciemba v.

State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010). However, a conviction can be supported

solely by circumstantial evidence. Id. at 462. In Kuciemba, the evidence established the officer

arrived at the accident scene fifteen to twenty minutes after receiving a report that a motorcycle

had been observed in the ditch by a passing motorist. Id. at 462. The officer first observed the

defendant lying in the ditch next to his motorcycle, and the defendant proceeded to tell the officer

that he had been operating the motorcycle on the county road immediately prior to losing control

and landing in the ditch. Kuciemba, 310 S.W.3d at 462. The officer also observed the


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defendant’s symptoms of intoxication upon first encountering him. Id. at 462. In that case, there

was no evidence of other persons, liquor, or liquor containers in the area where the officer found

the defendant, or any other evidence to support an inference that the defendant had the means or

opportunity of ingesting alcohol from the time he lost control of the motorcycle until the officer

found him lying beside it in the ditch. Id. at 462-63. Reversing the lower court’s decision that

there was legally insufficient evidence to support the defendant’s DWI conviction in Kuciemba,

the Court of Criminal Appeals indicated: “Being intoxicated at the scene of a traffic accident in

which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused

the accident . . . .” Id. at 462. The Court of Criminal Appeals also indicated that although the

State did not offer any evidence to exclude the possibility that the defendant had ingested alcohol

from the time he lost control of the motorcycle until the officer found him in the ditch, the State

did not have to disprove every theoretical hypothesis besides guilt to meet its burden of proving

guilty beyond a reasonable doubt. Id. at 463. The Court continues: “In this case, it can

reasonably be inferred that the deputy found Blackman where he had come to rest after losing

control of his motorcycle and that Blackman’s state of intoxication at that time existed when he

last operated the motorcycle on the county road.” Id. at 463. Based on this rationale among

others, the Court of Criminal Appeals reversed the court of appeals’ judgment. Id. at 463.

       In this case, the two deputies first observed Appellant driving a white vehicle at a very

low speed past the site where the motor vehicle accident occurred, and they had to tell her to

move on a few times. The deputies were then dispatched to the 400 block of East Vinton for a

reported traffic hazard, and when they arrived, they saw the same white vehicle in the middle of

the road, “off to its side.” Approximately thirteen to fifteen minutes had gone by from the time


                                                -6-
the deputies observed Appellant driving by the accident scene to their encounter with her on East

Vinton. During this second encounter, the officers found Appellant in the driver’s seat, and she

related to Deputy Padilla that her boyfriend, a passenger in the vehicle, had grabbed the wheel

and taken the key from the vehicle’s ignition. Both deputies testified that they observed

symptoms of Appellant’s intoxication, including a strong odor of alcohol emanating from her

breath and person, her red, bloodshot eyes, and her slurred speech. Upon asking Appellant

whether she had been drinking, she replied, “yes,” and then Deputy Padilla asked her to step

outside of her vehicle. As she exited the vehicle, she was not able to maintain her balance, and

almost fell down, so Deputy Padilla had to grab her upper right arm to steady her. Deputy

Paredes testified that Appellant walked to the rear of the vehicle, “but she was stumbling. She

couldn’t maintain her balance.” Moreover, Deputy Padilla testified that he did not observe any

alcoholic containers in Appellant’s vehicle that night.

       On appeal, Appellant does not contest that she was intoxicated when the officers found

her on East Vinton, but she argues that there was no evidence indicating she was intoxicated

when she was driving past the accident scene during her first encounter with the deputies.

However, Appellant’s state of intoxication during her second encounter with the deputies, where

her parked car created a traffic hazard on a public roadway, constitutes some circumstantial

evidence that her state of intoxication combined with her operation of the motor vehicle led to

this hazard. See Kuciemba, 310 S.W.3d at 462. Moreover, a mere thirteen to fifteen minutes had

passed between her first and second encounter with the deputies, which supports a finding of a

temporal link. See Keenan v. State, 700 S.W.2d 12, 14 (Tex.App.--Amarillo 1985, no

pet.)(holding that jury reasonably concluded that defendant was guilty of driving while


                                                -7-
intoxicated where there was a small time lapse between the first sighting of defendant behind the

wheel of his vehicle with engine running and the second sighting when he was found intoxicated

in his vehicle). Contrary to Appellant’s argument that proof amounting only to a strong

suspicion or mere probability is insufficient, the Court of Criminal Appeals has indicated that it

“[does] not regard the State’s burden of proving guilt beyond a reasonable doubt as requiring it to

disprove every theoretical hypothesis other than guilt.” Kuciemba, 310 S.W.3d at 463. As such,

in meeting its burden of proof, the State did not have to offer any evidence to exclude the

possibility that Appellant had ingested alcohol between the time the deputies first observed

Appellant driving the vehicle to the time they encountered her in an intoxicated state in the

parked vehicle. The jury could have reasonably inferred that Appellant drove from the accident

scene to the 400 block of East Vinton, where her vehicle stalled, and that she was in a state of

intoxication when she last operated the vehicle on the public road. Viewing the evidence in the

light most favorable to the verdict, we conclude that the evidence in this case is legally sufficient

to support the conviction. We also hold that the trial court did not err in denying Appellant’s

motion for directed verdict. Accordingly, we overrule all of Appellant’s issues.

       The trial court certified Appellant’s right to appeal in this case, but the certification does

not bear Appellant’s signature indicating that she was informed of her rights to appeal and to file

a pro se petition for discretionary review with the Texas Court of Criminal Appeals. See

TEX .R.APP .P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s

attorney or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,

pursuant to TEX .R.APP .P. 48.4, to send Appellant a copy of this opinion and this Court’s

judgment, to notify Appellant of her right to file a pro se petition for discretionary review, and to


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inform Appellant of the applicable deadlines. See TEX .R.APP .P. 48.4, 68. Appellant’s attorney

is further ORDERED to comply with all of the requirements of TEX .R.APP .P. 48.4.

       Having overruled Appellant’s issues presented for review, we affirm the trial court’s

judgment.



September 28, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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