Opinion filed June 12, 2014




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-11-00359-CR
                                     __________

                     BRAVITO GONZALES, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 104th District Court
                                 Taylor County, Texas
                              Trial Court Cause No. 17461B



                      MEMORANDUM OPINION
      The jury convicted Bravito Gonzales of the offense of felony driving while
intoxicated. Appellant pleaded true to one enhancement paragraph, and the trial
court assessed punishment at confinement for ten years. In four issues, Appellant
challenges the trial court’s denial of his motion to suppress, the trial court’s denial
of his challenges for cause during voir dire, the trial court’s failure to instruct the
jury on the lesser included offense of misdemeanor driving while intoxicated, and
the sufficiency of the evidence to support his conviction. We affirm.
                             I. The Charged Offense
      A person commits the offense of driving while intoxicated (DWI) if he is
intoxicated while operating a motor vehicle in a public place. See TEX. PENAL
CODE ANN. § 49.04(a) (West Supp. 2013). The offense is a third-degree felony if
the State shows that the person previously has been twice convicted of the offense
of DWI. Id. § 49.09(b)(2).
                             II. The Evidence at Trial
      Shane Meffert testified that he was involved in a traffic accident with
Appellant on the night of Appellant’s arrest. The incident began when Meffert
stopped his southbound motorcycle at a red light. After the light turned green,
Meffert started to go forward, but the vehicle facing northbound suddenly started
to turn in front of him. The vehicle caused Meffert to drop his motorcycle in order
to avoid a collision and to keep from being run over by the vehicle. The vehicle
came to a stop partially in Meffert’s lane with Meffert’s motorcycle lying down in
front of it.   Meffert testified that there was never any contact between his
motorcycle and the vehicle and that no one was injured as a result of the accident.
After Meffert dropped his motorcycle, Appellant got out of the driver’s side of the
vehicle and accused Meffert of causing the accident. Meffert smelled alcohol on
Appellant’s breath.     Soon thereafter, the police were called and arrived to
investigate the accident.
      Abilene Police Officers Chris Lazirko and Jeff Farley were the investigating
officers at the scene. Officer Lazirko testified that he was dispatched to an auto
accident around 9:30 p.m. on the night in question. When Officer Lazirko arrived
on the scene, he saw Appellant’s vehicle partially in the southbound lane and
Meffert’s motorcycle lying down. Officer Lazirko, as a part of routine practice,
                                         2
talked to the drivers involved in the accident and other witnesses on the scene.
Officer Lazirko detected the strong and distinct odor of alcohol coming from
Appellant’s breath as they discussed the events that led to the accident, and
Officer Lazirko began to suspect a possible DWI. At that point, Officer Lazirko
proceeded with the DWI investigation while Officer Farley took over the accident
investigation.
      Although there were no physical indicators of intoxication other than the
smell of alcohol on Appellant’s breath, Officer Lazirko decided to conduct field
sobriety tests after speaking with Appellant and other witnesses on the scene.
Officer Lazirko, with Appellant’s consent, conducted the horizontal gaze
nystagmus test and the walk-and-turn test; he did not conduct the one-leg stand test
because Appellant indicated that he had a leg injury that could impair his ability to
perform the test. According to Officer Lazirko, Appellant showed three of the four
indicators of intoxication in the horizontal nystagmus test and did not pass the
walk-and-turn test because he improperly touched his heel to his toe, took too
many steps, and failed to follow instructions. Officer Lazirko placed Appellant
under arrest for DWI and read Appellant his Miranda 1 rights. After Appellant
refused to provide a breath or blood sample, Officer Lazirko questioned Appellant
as part of the normal DWI investigation procedure. Appellant admitted that he was
operating the vehicle involved in the accident and that he had recently finished
drinking two Bud Ice quarts. Officer Lazirko testified that, based on his training
and experience, he had “no doubt” that Appellant was intoxicated.
      Officer Farley testified that he was dispatched to a disturbance call in
reference to a vehicle accident on the night in question. Upon his arrival, Officer
Farley saw a motorcycle lying in the street and Officer Lazirko talking to
witnesses. Officer Farley joined the investigation and spoke with Appellant. Like
      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                                     3
Officer Lazirko, Officer Farley detected the odor of alcohol on Appellant’s breath.
Officers Farley and Lazirko then conducted simultaneous investigations with
respect to the accident and a possible DWI. Officer Farley’s investigation led him
to conclude that a “no contact vehicle accident” had taken place between Appellant
and Meffert. Thereafter, Officer Farley observed Officer Lazirko conduct the field
sobriety tests. Officer Farley testified that, based on his training and experience,
he believed that Appellant was intoxicated.
                                III. Issues Presented
      Appellant presents four issues for our review. First, Appellant challenges
the trial court’s denial of his motion to suppress. Second, Appellant contends that
the trial court committed reversible error when it denied his requests to strike
certain voir dire panel members for cause and when it denied his request for
additional peremptory strikes, thereby causing objectionable panelists to end up on
the jury. Third, Appellant challenges the trial court’s denial of his requested
instruction on the lesser included offense of misdemeanor DWI. Fourth, Appellant
challenges the sufficiency of the evidence to support his conviction. We will first
address the motion to suppress, followed by the jury instruction issue, then the
sufficiency of the evidence, and, finally, the challenges for cause.
                               IV. Motion to Suppress
      Appellant challenges the trial court’s denial of his motion to suppress in his
first issue. According to Appellant, the initial basis for his detention—a reported
automobile accident—ceased when the officers determined that no collision had
occurred and that they would not continue the accident investigation or issue a
citation. Appellant contends that the smell of alcohol on his breath, without more,
was insufficient to create a reasonable suspicion for further investigation and
detention. Accordingly, Appellant contends that any evidence obtained as a result


                                          4
of his subsequent detention, including the results of the field sobriety testing and
his statements made to Officer Lazirko, should have been suppressed.
      A. Standard of Review
      We review a trial court’s ruling on a motion to suppress under an abuse of
discretion standard. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App.
2011). In our review of a ruling on a motion to suppress, we apply a bifurcated
standard of review. Id. at 922–23. We afford almost total deference to the trial
court’s determination of historical facts and of mixed questions of law and fact that
turn on the weight or credibility of the evidence. Id. However, we review de novo
the trial court’s determination of pure questions of law and mixed questions of law
and fact that do not depend on credibility determinations. Id. at 923. Thus, we
review de novo the issue of whether the totality of the circumstances was sufficient
to support an officer’s reasonable suspicion to detain a defendant for further
investigation. See Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
In making this determination, we consider only the evidence adduced at the
suppression hearing because the trial court’s ruling relied on it rather than the
evidence presented later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim.
App. 1996).
      B. Applicable Law
      Under the Fourth Amendment, 2 a warrantless detention of a person that
amounts to less than a full-blown custodial arrest must be justified by a reasonable
suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
Reasonable suspicion exists if the detaining officer has specific articulable facts
that, when taken together with rational inferences from those facts, lead the officer
to conclude that the person detained is, has been, or soon will be engaged in
criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).
      2
          U.S. CONST. amend. IV.

                                         5
These facts must amount to more than a mere hunch or suspicion that criminal
activity is afoot. Cullum v. State, 270 S.W.3d 583, 584–85 (Tex. Crim. App.
2008). The reasonable suspicion determination is an objective standard made by
considering the totality of the circumstances. Ford v. State, 158 S.W.3d 488, 492–
93 (Tex. Crim. App. 2005).
      Generally, an officer’s questioning of a witness during an accident
investigation is a consensual encounter and, therefore, does not invoke the Fourth
Amendment’s protections. State v. Rudd, 255 S.W.3d 293, 298 (Tex. App.—Waco
2008, pet. ref’d) (citing State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App.
1997)); Stoutner v. State, 36 S.W.3d 716, 719–20 (Tex. App.—Houston [1st Dist.]
2001, pet. ref’d). However, what began as a consensual encounter may escalate to
an investigative detention if the answers provided and the officer’s observations
provide reasonable suspicion to believe that the offense of DWI has occurred.
Rudd, 255 S.W.3d at 298. In such a case, an officer may perform field sobriety
tests, and the results of the sobriety testing may then lead to probable cause for an
arrest. See Rodriguez v. State, 191 S.W.3d 428, 444–45 (Tex. App.—Corpus
Christi 2006, pet. ref’d).
      C. Analysis
      Here, Appellant correctly recognizes that Officer Lazirko did not need to
have even reasonable suspicion to talk with him at the accident scene and ask
questions about the accident. See Stevenson, 958 S.W.2d at 829. The crucial
question, then, is whether the answers to Officer Lazirko’s questions and his
observations during the investigation provided reasonable suspicion to believe that
Appellant had committed the offense of DWI. See id.; Rudd, 255 S.W.3d at 298–
99. We conclude that they did.
      Appellant’s argument that the reasonable suspicion to justify his detention
was supported only by the smell of alcohol on his breath is misguided.
                                         6
Officer Lazirko testified at the suppression hearing that he suspected DWI based
on the strong odor of alcohol on Appellant’s breath and Appellant having pulled in
front of the motorcycle in the intersection where the accident occurred. The fact
that the officers’ investigation led them to conclude, contrary to initial reports, that
a collision had not taken place did not nullify the information recovered by
Officer Lazirko as to how the incident came about. Indeed, Officer Farley reported
the incident as a “no contact vehicle accident,” and witnesses told Officer Lazirko
that Appellant failed to yield at a green light and turned in front of Meffert’s
motorcycle, thereby causing Meffert to lay his motorcycle down to avoid a
collision. These facts rationally support an inference that Appellant’s driving was
impaired in some manner. Taken together with his detection of a strong odor of
alcohol on Appellant’s breath, Officer Lazirko could have reasonably concluded
that Appellant might have been driving under the influence of alcohol and that
further investigation was necessary to determine if Appellant had committed the
offense of DWI.       Given these specific articulable facts that Officer Lazirko
described in the suppression hearing, the trial court properly concluded that
Officer Lazirko had the requisite reasonable suspicion to justify Appellant’s
detention for further investigation. Thus, we hold that the trial court did not abuse
its discretion when it denied Appellant’s motion to suppress. Appellant’s first
issue is overruled.
                             V. Lesser Included Offense
      In his third issue, Appellant contends that the trial court committed
reversible error when it denied his request for an instruction on the lesser included
offense of misdemeanor DWI.
      A. Standard of Review
      The standard of review applicable to a jury instruction on a lesser included
offense depends on which of the two substantive prongs the court is reviewing.
                                           7
See State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). The first prong
in the lesser included offense analysis requires us to decide whether an offense is a
lesser included offense of the alleged offense. Id. This is a question of law that we
review de novo. Id. Under the second prong, we must decide whether there is
some evidence that would permit a jury to rationally find that, if the defendant is
guilty, he is guilty only of the lesser offense. Id.; Goad v. State, 354 S.W.3d 443,
446 (Tex. Crim. App. 2011).
      B. Applicable Law
      The State concedes that the misdemeanor DWI offense is a lesser included
offense of a felony DWI offense. That is the case because felony DWI is nothing
more than the misdemeanor offense enhanced by proof of two or more prior DWI
convictions. See PENAL § 49.09(b)(2); see also TEX. CODE CRIM. PROC. ANN. art.
37.09 (West 2006) (providing statutory elements of lesser included offense). Thus,
our analysis turns on the second prong of the lesser included offense analysis:
whether there is some evidence in the record that would permit a jury to rationally
find that, if the defendant is guilty, he is guilty only of the lesser included offense
of misdemeanor DWI. See Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App.
2011).
      Evidence that amounts to anything more than a mere scintilla is sufficient to
entitle a defendant to a lesser charge. Id. Although this is a low threshold, “it is
not enough that the jury may disbelieve crucial evidence pertaining to the greater
offense, but rather, there must be some evidence directly germane to the lesser-
included offense for the finder of fact to consider before an instruction on a lesser-
included offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex.
Crim. App. 2003) (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App.
1997)). As such, the Court of Criminal Appeals has held that the standard may be
satisfied “if some evidence refutes or negates other evidence establishing the
                                          8
greater offense or if the evidence presented is subject to different interpretations.”
Sweed, 351 S.W.3d at 68 (citing Robertson v. State, 871 S.W.2d 701, 706 (Tex.
Crim. App. 1993)).
      Here, to convict Appellant of felony DWI, the jury had to find him guilty of
the offense in this case and determine that he had two prior DWI convictions. See
PENAL §§ 49.04(a); 49.09(b)(2). To prove a prior conviction of an offense, the
State must establish beyond a reasonable doubt that a prior conviction exists and
link the defendant to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.
Crim. App. 2007). Although evidence of a certified copy of a final judgment and
sentence is the preferred and convenient means to do so, the State may prove the
existence of the prior conviction and its link to the defendant in a number of
different ways. Id. at 921–22.
      C. Analysis
      Appellant argues that the records of his alleged prior convictions are
unreliable, which could lead a rational trier of fact to find that Appellant was guilty
of a misdemeanor DWI rather than a felony. However, a defendant who simply
denies the additional element of the offense by pleading not guilty or by arguing
that the jury could have disbelieved the State’s evidence has failed to meet the
standard we described above. See Hampton, 109 S.W.3d at 441. In addition, the
trial court initially determines if there is any evidence, credible or not, from any
source that shows that the defendant is guilty of the lesser offense and not guilty of
the greater offense. Goad, 354 S.W.3d at 452.
      Appellant has not pointed to any evidence in the record that he was not
convicted of the two DWI offenses that were presented by the State at trial. The
State presented the jury with a certified copy of each judgment and sentence,
which stated that Bravito Gonzales was guilty of the offense of DWI on
January 29, 1985, and January 12, 1994, respectively. Although the judgments did
                                          9
not contain a fingerprint to specifically link Appellant to them, the State offered
the booking records pertaining to the arrest for each of the prior offenses. The
booking records contained Appellant’s presumed fingerprint, his date of birth, and
the appropriate case numbers that corresponded with the judgments. Next, the
State linked Appellant to the arrest records by eliciting testimony from a
fingerprint identification expert who compared the fingerprints from the arrest
records to Appellant’s fingerprints and concluded that they matched.              This
evidence was sufficient to link Appellant to the prior convictions, and Appellant
has not pointed to, nor have we found, any evidence to show that he was not
convicted of the two previous DWI offenses. As such, no rational jury could find
that Appellant was guilty of misdemeanor DWI rather than felony DWI. We
therefore hold that the trial court did not err when it refused to provide the jury
with an instruction on the lesser included offense.        Appellant’s third issue is
overruled.
                           VI. Sufficiency of the Evidence
      In his fourth issue, Appellant contends that the evidence was insufficient to
establish (1) that he was intoxicated at the time of the alleged offense and (2) that
he had previously been convicted of two DWI offenses.
      A. Standard of Review
      To determine if the evidence is sufficient to support a conviction, we review
all of the evidence in the light most favorable to the verdict and 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);
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In conducting a
sufficiency review, we defer to the jury’s role as the sole judge of the credibility of
the witnesses and the weight their testimony is to be afforded. Brooks, 323 S.W.3d
at 899. This standard accounts for the factfinder’s duty to resolve conflicts in
                                          10
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).          When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
prosecution and, therefore, defer to that determination. Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778. Each fact need not point directly and independently
to the defendant’s guilt, so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).
      B. Applicable Law
      We measure the sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009). As previously stated, a person commits the
offense of DWI if he (1) was intoxicated (2) while operating a motor vehicle (3) in
a public place. PENAL § 49.04(a). The offense is a third-degree felony if the
accused had two prior convictions for DWI at the time of the charged offense. Id.
§ 49.09(b)(2).   Appellant restricts his sufficiency challenge to the element of
intoxication and to the proof of two prior convictions for DWI. As we held above,
the State provided sufficient proof to establish the existence of two prior DWI
convictions and Appellant’s link to them. See Flowers, 220 S.W.3d at 921. We
therefore focus our sufficiency review on the element of intoxication.
      “Intoxicated” means “not having the normal use of mental or physical
faculties by reason of the introduction of alcohol” or “having an alcohol
concentration of 0.08 or more.”      PENAL § 49.01(2) (West 2011).       The first
definition of intoxication is known as the “‘impairment’ theory” and demonstrates
that a person may still be legally intoxicated even if there is no evidence of his
blood, breath, or urine alcohol content. Kirsch v. State, 306 S.W.3d 738, 743 (Tex.
                                         11
Crim. App. 2010). The impairment theory is germane in this case because there
was no evidence of alcohol concentration.
      C. Analysis
      As we outlined above, the record reflects that Officer Lazirko detected the
strong odor of alcohol on Appellant’s breath when he first made contact with him
at the accident scene and that witnesses indicated that Appellant caused the
accident when he failed to yield at a green light and turned in front of Meffert’s
motorcycle.     Officer Lazirko conducted field sobriety tests on Appellant, and
Appellant failed these tests. After Appellant was placed under arrest and read his
Miranda rights, he admitted to having recently finished drinking two Bud Ice
quarts. Further, Officers Lazirko and Farley both testified at trial that, based on
their training and experience, they believed that Appellant was intoxicated. Given
Appellant’s involvement in the accident, his poor performance on the field sobriety
tests, and his admission of recent drinking, we conclude that a rational trier of fact
could have found that Appellant was intoxicated at the time of the accident. Thus,
the evidence was sufficient to support his conviction. We overrule Appellant’s
fourth issue.
                             VII. Challenge for Cause
      In his second issue, Appellant challenges the trial court’s denial of his
requests to strike certain voir dire panel members for cause and his request for
additional peremptory strikes.
      A. Standard of Review
      When reviewing the denial of a challenge for cause, we look at the entire
record to determine if there is sufficient evidence to support the ruling. Davis v.
State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).            We give considerable
deference to the trial court’s ruling on a challenge for cause because “the trial
judge is in the best position to evaluate a venire member’s demeanor and
                                         12
responses.” Id. We accord particular deference to the trial court’s decision when
a veniremember’s answers are vacillating, unclear, or contradictory.              Id.
Accordingly, we will reverse a trial judge’s ruling on a challenge for cause only for
a clear abuse of discretion. Id.
      B. Applicable Law
      Either the State or defense may challenge a prospective juror for cause if he
has a bias or prejudice against the defendant or against the law upon which either
the State or the defense is entitled to rely.         Id.; see also CRIM. PROC.
art. 35.16(a)(9). The test is whether the bias or prejudice would substantially
impair the veniremember’s ability to carry out the oath and instructions in
accordance with the law. Davis, 329 S.W.3d at 807. Before a veniremember may
be excused due to potential bias, the proponent must explain the law to him and
ask whether he can follow that law regardless of his personal views. Id. The
burden of establishing that the challenge for cause is proper rests on the proponent
of the challenge. Id. The proponent does not meet this burden until the proponent
shows that the veniremember understood the requirements of the law and could not
overcome his prejudice well enough to follow the law. Id.
      C. Analysis
      Appellant claims that the trial court erroneously denied his challenges for
cause due to bias as to nine veniremembers: Willis, Ortiz, Martinez, Robinson,
Diller, Brown, Davis, Solomon, and Lackey. As a result of the trial court’s denial
of Appellant’s challenges for cause to these nine veniremembers, Appellant claims
that he was harmed when four objectionable jurors sat on the jury.
       The record shows that, near the end of voir dire, Veniremembers Ortiz,
Robinson, Solomon, Brown, Willis, Davis, Diller, Lackey, and Martinez all stated
that they were leaning toward the State for a variety of reasons. However, after
these veniremembers indicated their personal views and potential bias in favor of
                                         13
the State, neither party questioned them further about their statements, explained
the law to them or what the law requires, or asked whether they could follow the
law despite their personal views. As such, Appellant failed to meet his burden to
establish that the complained-of veniremembers were challengeable for cause on
the basis of bias.
       We therefore hold that the trial court did not abuse its discretion when it
denied Appellant’s challenges for cause. See Threadgill v. State, 146 S.W.3d 654,
667 (Tex. Crim. App. 2004) (holding trial court did not abuse its discretion when it
denied a challenge for cause when neither party questioned the complained-of
venireperson further about his potential bias, explained what the law requires, or
asked whether he could follow the law despite personal views); see also
Swearengin v. State, 349 S.W.3d 284, 288 (Tex. App.—Eastland 2011, pet. ref’d)
(holding trial court did not abuse its discretion when it overruled defendant’s
challenge for cause because defendant failed to show that complained-of
venireperson understood the requirements of the law and yet could not overcome
his personal feelings and follow the law). Because we have concluded that bias
was not established, we overrule Appellant’s second issue.
                              VIII. This Court’s Ruling
       Having overruled all four of Appellant’s issues, we affirm the judgment of
the trial court.




                                                   MIKE WILLSON
June 12, 2014                                      JUSTICE
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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