                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-14-00039-CR


BARCLAY EDWARD BERDAN II                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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         FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
                      TRIAL COURT NO. 1327699

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                    EN BANC MEMORANDUM OPINION 1
                      ON MOTIONS FOR REHEARING

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         After reviewing appellant Barclay Edward Berdan II’s motion for rehearing

and motion for rehearing en banc, we deny the motions, withdraw our November

6, 2014 memorandum opinion and judgment, and substitute the following in their

place.



         1
         See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      Berdan went drinking with a friend in the West 7th Street area of Fort

Worth. While driving home, Berdan hit a light post in an intersection causing

the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police

Officer Brian White saw the accident happen and approached the truck. White

testified that Berdan willingly stepped out of his car, and as Berdan got out, he

stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol

on Berdan’s breath.    Berdan admitted that he “had a couple of drinks” at a

nearby bar.   After the initial observations of intoxication, White decided to

conduct a field-sobriety evaluation. 2 White twice asked Berdan to perform the

tests, but Berdan refused each time, without giving a reason. Believing that

Berdan had lost the normal use of his mental and physical faculties due to the

introduction of alcohol into his body, White arrested Berdan and took him to the

City of Fort Worth jail. 3 In the parking lot of the jail, White read Berdan the

required statutory warnings and asked Berdan to provide a breath sample. See

Tex. Transp. Code Ann. § 724.015 (West Supp. 2014). He refused. Berdan

would not sign the form indicating that he was refusing to provide a sample. A

      2
       There are three different tests that the Fort Worth Police Department
performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg
stand. [3 RR 77]
      3
       Before White took Berdan to the jail, MedStar EMS arrived to treat
Berdan. He had no injuries that would have prevented him from performing the
tests. The medical personnel noted, however, that Berdan smelled of alcohol
and that Berdan had admitted to drinking alcohol.


                                       2
jury convicted Berdan of driving while intoxicated, and the trial court assessed

his punishment at ninety days’ confinement, probated for twenty-four months,

with a $600 fine. See Tex. Penal Code Ann. § 49.04 (West Supp. 2014).

                          II. SUFFICIENCY OF THE EVIDENCE

       Berdan argues that the evidence was insufficient to show that he was intoxicated.

In our due-process review of the sufficiency of the evidence to support a conviction, we

view all of 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, 99 S. Ct. 2781, 2789 (1979);

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

       Intoxication is statutorily defined as “not having the normal use of mental or physical

faculties by reason of the introduction of alcohol . . . or any other substance into the body.”

Tex. Penal Code Ann. § 49.01(2)(A) (West 2011). A person’s refusal of a request by an

officer to submit to the taking of a specimen of breath or blood, whether the refusal was

express or the result of an intentional failure to give the specimen, may be introduced into

evidence at the person’s trial and be considered as evidence of guilt. Tex. Transp. Code

Ann. § 724.061 (West 2011); Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132,

at *2 (Tex. App.—Fort Worth July 24, 2014, no pet.) (mem. op., not designated for

publication).

       Berdan was driving erratically such that he drove his car into a light post. Berdan

was stumbling when he got out of the car and had bloodshot eyes. He admitted he had

been drinking. White testified that Berdan had lost the normal use of his physical and



                                              3
mental faculties due to alcohol consumption and that Berdan refused to provide a breath

sample. This evidence allowed the jury to draw the reasonable inference that Berdan was

intoxicated at the time he was driving; thus, the evidence was sufficient to support his

conviction for driving while intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex.

Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d); Coggins v. State, 160 S.W.3d 177, 180 (Tex. App.—Texarkana 2005, no

pet.). We overrule Berdan’s sole issue.

                                   III. CONCLUSION

       Having overruled Berdan’s issue, we affirm the trial court’s judgment. See Tex. R.

App. P. 43.2(a).

                                                      /s/ Lee Gabriel

                                                      LEE GABRIEL
                                                      JUSTICE

EN BANC

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 22, 2015




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