                                                                                         ACCEPTED
                                                                                     01-14-00837-CR
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                9/30/2015 3:16:50 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK




                         No. 01-14-00837-CR
                                                                 FILED IN
                                                          1st COURT OF APPEALS
                                  In the                      HOUSTON, TEXAS
                           Court of Appeals               9/30/2015 3:16:50 PM
                                 For the                  CHRISTOPHER A. PRINE
                                                                  Clerk
                         First District of Texas
                               At Houston
                         ♦
                           No. 1944593
                 In County Criminal Court at Law 13
                       Of Harris County, Texas
                         ♦
                          Brent Alan Dalton
                                Appellant
                                   v.
                          The State of Texas
                                Appellee
                         ♦
                        State’s Appellate Brief
                         ♦



Devon Anderson                                 Clinton A. Morgan
District Attorney                              Assistant District Attorney
Harris County, Texas                           Harris County, Texas
                                               State Bar No. 24071454
Gilbert G. Sawtelle, IV                        morgan_clinton@dao.hctx.net
Rehana L. Vohra
                                               1201 Franklin St., Suite 600
Assistant District Attorneys
                                               Houston, Texas 77002
Harris County, Texas
                                               Telephone: 713.755.5826




                    Oral Argument Not Requested
                  Statement Regarding Oral Argument

      The appellant requests oral argument because he believes “this

case presents an important question about whether there is legally

sufficient evidence for any rational trier of fact to find the essential

elements of DWI beyond a reasonable doubt where there is an

insufficient temporal link to prove Appellant was intoxicated while

operating a motor vehicle.” But the answer to that question is obvious —

if the evidence is insufficient, the evidence is insufficient.

      The question presented in this case is whether the evidence of a

“temporal link” is insufficient. Because there are no disputed questions

of admissibility or legal interpretation, this is a fact-specific inquiry that

will be entirely controlled by the record. Oral argument is unlikely to

assist this Court’s review of the record. Accordingly, the State does not

request oral argument.




                                       i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Gilbert G. Sawtelle, IV & Rehana L. Vohra
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Brent Alan Dalton

Counsel for the Appellant:

      Brock A. White
           — Counsel at trial

      Carmen Roe
           — Counsel on appeal

Trial Judge:

      Don Smyth
            Presiding judge




                                      ii
                                            Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................ iv
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Reply to the Appellant’s Sole Point of Error ................................... 3
   There is sufficient evidence to show that the appellant was intoxicated
   at the time he was driving. ....................................................................................... 3
   The appellant raises several ancillary matters that should have no
   effect on this Court’s decision in this case. ........................................................ 6
Conclusion ............................................................................................. 9
Certificate of Compliance and Service ........................................... 10




                                                          iii
                                                Index of Authorities



Cases
Clayton v. State
  235 S.W.3d 772 (Tex. Crim. App. 2007) .............................................................. 4
Kirsch v. State
  276 S.W.3d 579 (Tex. App.—
  Houston [1st Dist.] 2008), aff'd, 306 S.W.3d 738 (Tex. Crim. App.
  2010) ............................................................................................................................ 5, 8
Merritt v. State
 368 S.W.3d 516 (Tex. Crim. App. 2012) .............................................................. 4
Murray v. State
 457 S.W.3d 446 (Tex. Crim. App. 2015) .............................................................. 7
Navarette v. California
 134 S. Ct. 1683 (2014) ............................................................................................... 7
Wyatt v. State
 23 S.W.3d 18 (Tex. Crim. App. 2000).................................................................... 4




                                                                   iv
                          Statement of the Case

      The appellant was charged with driving while intoxicated. (CR 7).

The information alleged a prior felony conviction. (CR 7). The appellant

pleaded not guilty, but a jury found him guilty as charged. (CR 112).

Without making a finding on the enhancement paragraph, the trial court

assessed punishment at 60 days’ confinement in the county jail. (CR

112). The appellant filed a timely notice of appeal and the trial court

certified his right of appeal. (CR 115, 117).


                            Statement of Facts

      Deputy Constable Patrick Magee was dispatched in response to a

911 call that a Chevrolet Silverado was driving into oncoming lanes of

traffic and had run another driver off the road. (3 RR 16). Magee saw a

vehicle matching the description from dispatch and followed it into an

HEB parking lot. (3 RR 17). Upon confirming that the license plates

matched the ones given out by dispatch, Magee activated his emergency

lights to stop the vehicle. (3 RR 22).

      Instead of stopping, the Silverado slowly drove away. (3 RR 22-

23). Magee used his loudspeaker to tell the driver to stop; the Silverado

stopped momentarily, but then slowly drove away again. (3 RR 23).

                                         1
Magee followed the Silverado until it stopped a second time. (3 RR 24).

He used his loudspeaker to tell the driver to stay in the vehicle and roll

his window down. (3 RR 24).

      The driver — the appellant — put the vehicle into park, and then

immediately got out of the vehicle and charged toward Magee. (3 RR

26). The appellant approached Magee in a staggering but aggressive

manner. (3 RR 73). Another Deputy Constable, Lasonya King, had

arrived on the scene and grabbed the appellant as he approached

Magee. (3 RR 73-74).

      As soon as King grabbed the appellant, she noticed that he had

bloodshot eyes and slurred speech. (3 RR 73-74). King had to hold him

up because he seemed too unsteady to stand on his own. (3 RR 74).

Though he had problems speaking, the appellant explained that he was

being treated by a doctor and was on hydrocodone. (3 RR 76). The

appellant was taken to the Houston Police Department’s central station

for a DWI investigation. (3 RR 79).

      At the station, the appellant told officers that he was, in fact, on

several prescription drugs. (3 RR 27-29). The appellant said that he took

the drugs fifteen minutes prior to driving. (4 RR 75). Houston Police

Officer David Ciers conducted a drug recognition examination and
                                      2
concluded that the appellant had lost the normal use of his mental and

physical faculties due to the ingestion of a central nervous depressant.

(4 RR 79).

      The appellant initially consented to give a blood sample, but after

spending a while at the hospital he revoked his consent. (4 RR90, 92).

Police then obtained a search warrant for the appellant’s blood. (State’s

Ex. 6). When an officer told the appellant that they had a warrant for his

blood, the appellant “fell on the floor and said he’s having a seizure.” (4

RR 183). The appellant was taken to the hospital to be evaluated, but the

doctor concluded that he was just dehydrated. (5 RR 7). While at the

hospital, a sample of the appellant’s blood was taken; an analysis of the

blood showed the presence of four prescription drugs that worked as

central nervous depressants, as well as marihuana. (5 RR 43-47).


             Reply to the Appellant’s Sole Point of Error


There is sufficient evidence to show that the appellant was
intoxicated at the time he was driving.

      The appellant’s only claim of error is that the evidence is

insufficient to prove that he was intoxicated while operating a motor

vehicle. (Appellant’s Brief at 16-20). However, the appellant’s argument


                                    3
consists mostly of reurging factual claims that were rejected by the jury.

Viewed in the appropriate light, the evidence is sufficient to support the

verdict.

      When reviewing the sufficiency of the evidence, this Court

considers all of the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and the reasonable

inferences therefrom, a jury was rationally justified in finding guilt

beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012). Because the Texas legal system assigns to the

factfinder at trial the duty of resolving conflicting testimony, an

appellate court conducting sufficiency review must defer to the jury’s

credibility determinations. See Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). The jury may choose to believe some testimony

and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.

Crim. App. 2000). When the record supports conflicting inferences, this

Court presumes that the jury resolved the conflicts in favor of the

verdict, and will defer to that determination. Thomas v. State, 444 S.W.3d

4, 8 (Tex. Crim. App. 2014).

      In this case, deputies Magee and King testified to the appellant’s

condition at the time he stopped driving and got out of his pickup truck:
                                    4
         • The appellant kept slow rolling after Magee activated his
           emergency lights, and then refused to follow commands
           when he exited his truck. (3 RR 22-27). The appellant
           continued to be uncooperative after police detained him. (3
           RR 123); see Kirsch v. State, 276 S.W.3d 579, 585 (Tex.
           App.—Houston [1st Dist.] 2008), aff'd, 306 S.W.3d 738 (Tex.
           Crim. App. 2010) (refusal to follow commands can be sign of
           intoxication).

         • The appellant was unbalanced and staggered as he charged
           toward Magee. (3 RR 27, 73).

         • The appellant’s speech was slurred. (3 RR 84).

         • The appellant had difficulty standing on his own. (3 RR 74).

         • The appellant could not remember his wife’s name. (3 RR
           123-24).

      These clues of intoxication are similar to those observed hours

later when the appellant was at the police station. (See, e.g., 4 RR 64-66

(appellant failed balance-related sobriety tests), 156 (another officer

testifying to about appellant’s slurred speech hours after his arrest). The

observed clues, both at the scene and at the station, matched up with

testimony from Officer Ciers regarding the effects of central nervous

system depressants. (See 4 RR 79 (describing effects of central nervous

system depressants, such as slurred speech, sluggishness, and being

uncoordinated)).




                                    5
      The appellant told officers that he took the drugs prior to driving.

(3 RR 75).1 He exhibited fairly consistent symptoms of intoxication from

the time officers first encountered him all the way through the DWI

investigation. Viewing the evidence in the light most favorable to the

verdict, it is sufficient to show that the appellant was intoxicated while

operating a motor vehicle.


The appellant raises several ancillary matters that should have no
effect on this Court’s decision in this case.

      Much of the appellant’s argument consists of assertions that are

unrelated to sufficiency review in this case. The appellant points out

that Magee observed the appellant driving for only a few seconds.

(Appellant’s Brief at 17). The appellant does not explicitly note the legal

significance of this observation. Even if Magee observed the appellant

driving for only 10 or 15 seconds, the appellant was driving at the time

Magee observed him, meaning, necessarily, that the appellant had been

driving for longer. Moreover, the DWI statute does not require any

particular period of observed driving; it does not actually require

officers to observe the defendant driving at all. See, e.g., Murray v. State,

1The appellant said that he took the drugs 15 minutes before driving, but the State
doubts that this was an accurate estimate. (See 4 RR 75). The appellant told Ciers
that he took the drugs at 5:00 pm, but the appellant was arrested at 4:30 pm. (4 RR
127).
                                        6
457 S.W.3d 446, 449 (Tex. Crim. App. 2015) (evidence sufficient where

defendant found unconscious in parked vehicle with engine running).

      In another part of his brief, the appellant seems to assert that

police violated the law when they stopped him based solely on the

report from the 911 caller. (Appellant’s Brief at 17). The appellant did

not complain at the trial court about the legality of his detention, thus

this part the appellant’s brief presents nothing for this Court’s review.

Moreover, the appellant’s legal assertion is incorrect. See Navarette v.

California, 134 S. Ct. 1683, 1688-89 (2014) (where anonymous 911

caller described make, model, and license plate of vehicle and stated

that the vehicle had run her off the road, the call was sufficiently reliable

to be the basis for a traffic stop).

      Finally, the appellant spends part of his brief pointing out that his

symptoms were consistent with certain medical conditions. (Appellant’s

Brief at 18-19). That might be true, but the only evidence of the

appellant having any medical conditions that was admitted to the jury

were second-hand statements by police officers about what the

appellant had told them. The jury was free to disbelieve these unsworn,

self-serving statements. Moreover, the State is not required to

affirmatively disprove alternative hypotheses in order to prevail on
                                       7
sufficiency review. See Kirsch, 276 S.W.3d at 585 (evidence that

defendant’s symptoms of intoxication could have been caused by a head

injury was irrelevant on sufficiency review). The appellant’s supposed

medical conditions should not factor into a sufficiency analysis.




                                    8
                              Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24071454




                                    9
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 1,468 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Carmen Roe
      carmen@carmenroe.com

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454


Date: September 30, 2015




                                     10
