                                   NO. 07-06-0353-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                    AUGUST 14, 2007

                          ______________________________


                             ROBERT REYES, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

         NO. 2005-495,451; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Robert Reyes, was convicted by a jury of

driving while intoxicated and sentenced to 120 days confinement. Presenting a single

issue, he contends the State’s evidence was factually insufficient to support his conviction.

We affirm.
       Appellant was arrested for driving while intoxicated after he struck a bicyclist with

his vehicle. The collision occurred near a rural intersection east of Lubbock where Reserve

Sheriff’s Deputy Daniel Castleman was directing traffic for bicyclists participating in a

triathlon. At approximately 11:00 a.m., Castleman observed a bicyclist and several

vehicles approaching the intersection. Wearing a bright-orange reflective vest, he went to

the middle of the roadway and signaled for the lead vehicle to stop. Unsure whether the

driver of that vehicle saw him, Castleman repositioned himself directly in front of the

oncoming vehicle. When the driver failed to respond, Castleman realized that the vehicle

was not going to stop and he yelled for the bicyclist to get out of the roadway. As

Castleman jumped out of the vehicle’s path, the driver slammed on the brakes; however,

he was unable to avoid striking the bicyclist.


       After tending to the bicyclist, who sustained only minor injuries, Castleman identified

Appellant as the driver of the vehicle. Castleman was assisted at the scene by Reserve

Deputy Eddie Greer. When Greer asked Appellant for his driver’s license information, he

noticed the strong smell of an alcoholic beverage. A short time later, Castleman and Greer

were joined by Department of Public Safety Trooper Bryan Witt in the investigation of this

incident. At that time, Trooper Witt also smelled the strong odor of an alcoholic beverage

when talking to Appellant and noticed that Appellant’s eyes were bloodshot. Witt also

noticed that Appellant’s speech was slurred and that he “swayed a little bit” when standing.

Concerned that he was intoxicated, Witt asked Appellant to perform several field sobriety

tests, including the horizontal gaze nystagmus or HGN test. While conducting the HGN

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test, Witt counted six out of six possible clues of intoxication. Appellant declined to perform

the remaining tests or provide a breath sample for analysis. Based on his observations,

Witt arrested Appellant for driving while intoxicated. At his subsequent jury trial, Appellant

was convicted of the offense. He now challenges the jury’s verdict.


       A person commits the offense of driving while intoxicated if he is intoxicated while

operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon

2003). “Intoxicated” is defined as not having the normal use of mental or physical faculties

by reason of the introduction of alcohol, or other substances, into the body or having an

alcohol concentration of 0.08 or more. Id. at § 49.01(2). By his sole issue, Appellant

contends the State’s evidence was factually insufficient to prove beyond a reasonable

doubt that he was intoxicated when he struck the bicyclist.1 We disagree.


       When conducting a factual sufficiency review, we examine all the evidence in a

neutral light to determine whether the jury was rationally justified in finding guilt beyond a

reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004 ), overruled

in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006). In doing so,

we must discuss the most important and relevant evidence that supports Appellant's

complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We

cannot reverse a conviction unless we find some objective basis in the record that



       1
      During final arguments, Appellant conceded that the State proved the remaining
elements of the offense.

                                              3
demonstrates that the great weight and preponderance of the evidence contradicts the

jury’s verdict. Watson, 204 S.W.3d at 417. Furthermore, we cannot conclude that

Appellant’s conviction is “clearly wrong” or “manifestly unjust” simply because we disagree

with the jury’s verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).


       At Appellant’s trial, multiple witnesses testified regarding his intoxication. Deputy

Greer and Trooper Witt both testified to the odor of an alcoholic beverage when talking to

Appellant. When questioned, Appellant informed Witt that he had been intoxicated the

previous evening. Witt testified that he noticed Appellant’s bloodshot eyes, slurred speech,

and swaying while standing. In addition to the six clues of intoxication, Witt also noted that

Appellant had difficulty holding his head still while the HGN test was being administered.


       Much of this activity was videotaped from Witt’s patrol car and a copy of that tape

was introduced into evidence and played for the jury. A review of that videotape, however,

reveals that the details of that activity were difficult to discern. Furthermore, on cross-

examination, Witt admitted that Appellant was cooperative, followed all instructions, and

was able to tell him his address, height, weight, birth date, and social security number

without any difficulty. He also conceded that Appellant’s bloodshot eyes could have been

caused by the wind or allergies and that he was not familiar with Appellant’s normal

speech. Appellant’s sister testified that Appellant was acting “perfectly fine” before the

collision and that his eyes were always red and agitated from blowing dirt.




                                              4
         Even so, considering all this evidence in a neutral light, we cannot conclude that

Appellant’s conviction was clearly wrong or manifestly unjust. The testimony of the State’s

witnesses alone was sufficient to enable a jury to conclude that Appellant was intoxicated.

In this regard, the jury, as the exclusive judge of the facts and credibility of the witnesses,

was free to believe or disbelieve any part of a witness's testimony. Tex. Code Crim. Proc.

Ann. art. 38.04 (Vernon 1979); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Cr.App.

2001).     Appellant’s issue is overruled.


         Accordingly, we affirm the trial court’s judgment.




                                                   Patrick A. Pirtle
                                                       Justice

Do not publish.




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