Opinion filed October 15, 2015




                                         In The


          Eleventh Court of Appeals
                                      __________

                                 No. 11-13-00305-CR
                                     __________

                 JOSEPH LEON CARRASCO, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 385th District Court
                                 Midland County, Texas
                          Trial Court Cause No. CR41454

                      MEMORANDUM OPINION
      The jury found Joseph Leon Carrasco guilty of the offense of driving while
intoxicated while he had a child as a passenger in the vehicle.1 The jury assessed
punishment at confinement for two years and a fine of $2,500, but it recommended
community supervision. The trial court accepted the recommendation of the jury,
suspended the sentence, placed Appellant on community supervision for five years,

      1
       See TEX. PENAL CODE ANN. § 49.045 (West 2011).
and imposed the fine of $2,500. Appellant challenges, in a single issue, the
sufficiency of the evidence. We affirm.
                                I. Evidence at Trial
      Blake Bush, an experienced and certified peace officer with the Midland
Police Department, initiated a traffic stop of Appellant because defective
equipment on Appellant’s vehicle prevented Officer Bush from reading the
vehicle’s license plate number. Appellant did not immediately stop his vehicle,
despite several opportunities to do so. Eventually, Appellant stopped his vehicle,
and Officer Bush stopped his patrol car as well.
      Officer Bush then approached Appellant’s vehicle. Appellant’s daughter,
who was eight years old, was in the vehicle with Appellant. Once at the driver’s
door of Appellant’s vehicle, Officer Bush “detected the odor of alcoholic beverage
emanating from the driver.” Officer Bush later claimed the odor of alcohol was
strong. He “noted that, from [his] position contacting [Appellant], there was an
alcoholic-beverage can in the front compartment of the vehicle.”      Officer Bush
also “noticed the bloodshot, glassy eyes.” The alcoholic beverage, an eighteen-
ounce can of Miller Lite, was in the front passenger seat within arm’s reach of
Appellant. Officer Bush said that it was “cold to the touch as if it had been
recently purchased.”
      When Officer Bush asked, Appellant denied that he had been drinking and
refused to do any field sobriety tests.       Officer Bush asked Appellant to exit
Appellant’s vehicle, and Officer Bush testified that Appellant appeared nervous but
did not stumble. On cross-examination, Officer Bush admitted that Appellant did
not speed, drive erratically, change lanes improperly, or slur his speech. But
Officer Bush concluded, based on the totality of the circumstances, that
“[Appellant] was intoxicated while operating a vehicle,” and he arrested Appellant.
Officer Bush then took Appellant to Midland Memorial Hospital for a blood draw.
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Keitha Parrott-Hammerman, a nurse, drew a sample of Appellant’s blood at
11:00 p.m., two hours and twenty minutes after the initial stop. She also testified
that Appellant smelled of alcohol at the hospital.
        Dennis Hambrick, a chemist with the Texas Department of Public Safety,
tested Appellant’s blood sample. The tests yielded five results that indicated
Appellant’s blood alcohol concentration. The lowest figure, which he reported to
the police, indicated that Appellant’s blood contained 0.08 grams of alcohol per
100 milliliters of blood.              The other four tests2 indicated blood alcohol
concentration levels of 0.0917, 0.0914, 0.0897, and 0.0893 grams of alcohol per
100 milliliters of blood. Hambrick acknowledged that he did not know whether
Appellant was absorbing or eliminating alcohol from his blood when arrested.
Therefore, because the blood draw occurred two hours and twenty minutes after
Appellant was pulled over, he could not be sure if Appellant’s blood alcohol
concentration was higher or lower at the time of Appellant’s arrest.
                                      II. Standard of Review
        We review the sufficiency of the evidence under the standard of review in
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). The trier of fact is the sole judge of the weight and credibility of the
evidence, and a reviewing court may not reevaluate the weight and credibility of

        We note that Hambrick testified that he obtained four results related to Appellant’s blood alcohol
        2

concentration. Later, however, his testimony indicated that he obtained five figures.

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the evidence so as to substitute its own judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The reviewing
court must presume that the factfinder resolved any conflicting inferences in favor
of the verdict and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
                                    III. Analysis
      Appellant challenges the sufficiency of the evidence to support his
conviction.     Appellant asserts that there was insufficient evidence to prove
intoxication.   To support his argument, Appellant asserts that there “was no
evidence that [he] had any driving difficulties.”         Appellant argues, “[T]he
[arresting] officer admitted that he did not view the Appellant driving erratically.”
A person commits the offense of driving while intoxicated with a child passenger if
“the person is intoxicated while operating a motor vehicle in a public place” and if
the motor vehicle in question “is occupied by a passenger who is younger than 15
years of age.” PENAL § 49.045.
      The State may prove intoxication in either of two ways: (1) loss of normal
use of mental or physical faculties “by reason of the introduction of alcohol” or
(2) alcohol concentration in the blood, breath, or urine of 0.08 or more.          Id.
§ 49.01(2); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). “The
first definition is the ‘impairment’ theory, while the second is the ‘per se’ theory.”
Kirsch, 306 S.W.3d at 743. These two definitions are not mutually exclusive. Id.
The State must prove a “temporal link between the [] defendant’s intoxication and
his driving.” Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).
But “proof of the precise time of the accident or of driving is not the sine qua non
of driving while intoxicated.” Kennemur v. State, 280 S.W.3d 305, 314 n.8 (Tex.
App.—Amarillo 2008, pet. ref’d) (quoting Zavala v. State, 89 S.W.3d 134, 139
(Tex. App.—Corpus Christi 2002, no pet.) (internal quotation marks omitted).
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There must be proof from which the jury can conclude that, at the time of the
driving in question, the defendant was intoxicated. Zavala, 89 S.W.3d at 139.
      The trial court submitted both theories of intoxication to the jury, and the
jury returned a general guilty verdict. Appellant’s conviction will be upheld as
long as sufficient evidence was presented at trial to prove either of the alleged
theories. See Bagheri v. State, 119 S.W.3d 755, 761 n.5 (Tex. Crim. App. 2003)
(noting that, when the trial court submits alternate means by which the State may
prove intoxication, the evidence is sufficient to support a general guilty verdict if it
is sufficient to prove any of the means alleged). Proof can be from direct or
circumstantial evidence, and the latter is as probative as the former; the standard of
review for both is the same. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
App. 2004). Furthermore, a conviction can be supported solely by circumstantial
evidence. Kuciemba, 310 S.W.3d at 462 (citing Guevara, 152 S.W.3d at 49).
      Hambrick testified that he completed five tests and that all were 0.08 grams
of alcohol per 100 milliliters of blood or more. But these tests were taken two
hours and twenty minutes after Officer Bush stopped Appellant. As stated by the
Court of Criminal Appeals, a BAC-test result is not “by itself” sufficient to prove
intoxication at the time of driving, but “BAC-test results, even absent expert
retrograde extrapolation testimony, are often highly probative to prove both per se
and impairment intoxication.” Kirsch, 306 S.W.3d at 745. Appellant asserts that
the two-hour gap between Appellant’s driving and the blood alcohol concentration
testing and also the failure of Officer Bush to note any erratic driving demonstrated
that the evidence was insufficient to convict Appellant of the indicted offense of
driving while intoxicated with a child passenger.
      Officer Bush testified that Appellant smelled strongly of alcohol and had
glassy, bloodshot eyes. He found an eighteen-ounce can of Miller Lite within
arm’s reach of the driver’s seat, which Officer Bush believed had been recently
                                           5
purchased.   Appellant refused to take any field sobriety test.       Nurse Parrott-
Hammerman smelled alcohol on Appellant at the hospital. Officer Bush testified
that, based on his experience and the totality of the circumstances, he believed
Appellant was intoxicated. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim.
App. [Panel Op.] 1979) (holding that the testimony of the officer that the defendant
was intoxicated provided sufficient evidence to establish the element of
intoxication for the offense of driving while intoxicated); Kiffe v. State, 361
S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Henderson v.
State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). It is
undisputed that Appellant had his minor daughter in the vehicle with him at the
time of the traffic stop. The jury was the sole arbiter of the disputed facts, and the
jury believed Officer Bush. After viewing the evidence in the light most favorable
to the verdict, we hold that a rational trier of fact had sufficient evidence to find
beyond a reasonable doubt that Appellant was intoxicated while operating a motor
vehicle with a child passenger. We overrule Appellant’s sole issue on appeal.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                               MIKE WILLSON
                                               JUSTICE


October 15, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



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