                                  NO. 12-10-00261-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

FREDRICK F. SCOTT, SR.,                       §              APPEAL FROM THE 349TH
APPELLANT

V.                                            §              JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                      §              HOUSTON COUNTY, TEXAS


                                    MEMORANDUM OPINION
       A jury convicted Appellant, Fredrick F. Scott, Sr., of driving while intoxicated, third
offense. The trial court assessed his punishment at imprisonment for five years. In one issue,
Appellant challenges the sufficiency of the evidence to support his conviction. We affirm.


                                           BACKGROUND
       Appellant came into the Food Valley convenience store on October 11, 2008. He was
stumbling and bleeding from a cut on his ear. He took beer from the cooler and slammed it down
on the counter. Charmaine Donnell, the clerk on duty, knew Appellant. She noticed that his speech
was slurred so that it was almost unintelligible. When she asked if he needed help because of his
injury, he ignored her. Appellant, she testified, smelled strongly of beer and gin. She refused to sell
him beer, because she believed he was intoxicated. He left the store, but he angrily returned almost
immediately and she again refused to sell him beer. He drove his car recklessly around the gas
pumps, then parked his car, and came in the store again. He began cursing Donnell violently, and
Donnell called the police. The store’s surveillance video shows Appellant stumbled over the lottery
ticket machine in the store. Donnell testified he stumbled over to the beer coolers and stumbled out
the door.
          Officer Anthony Griffin responded to a radio dispatch that Appellant had been involved in
an altercation at the Food Valley store and that he was driving recklessly. Officer Griffin stopped
Appellant on the side of the Food Valley store parking lot. Appellant smelled strongly of an
alcoholic beverage, and his eyes were glassy. When Appellant got out of his truck, he persisted in
leaning on the vehicle for support. Officer Griffin gave Appellant no field sobriety tests. When he
told Appellant that he was under arrest for DWI, Appellant started cursing the officer, telling him
that he wanted to kill him and his family. Although the cut on Appellant’s ear required three staples
to repair, Officer Griffin believed Appellant’s conduct was due to intoxication and not his head
injury.
          Officer Vince Baker had seen Appellant’s truck being driven recklessly, at a high rate of
speed, spinning its wheels, leaving the roadway turning a corner, and spinning its wheels in the dirt
to get back on the road. Moments later, he saw Officer Griffin stop Appellant. He also smelled the
odor of an alcoholic beverage about Appellant and heard him cursing Officer Griffin. Officer Baker
found an opened 1.75 liter bottle of gin in Appellant’s truck along with several bottles of beer.


                                   SUFFICIENCY OF THE EVIDENCE
          In his sole issue, Appellant contends that the evidence is insufficient to support his
conviction.
Standard of Review
          In reviewing the sufficiency of the evidence, the appellate courts must determine whether,
considering all the evidence in the light most favorable to the verdict, the jury was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010). Considering the evidence “in the light most favorable to the verdict” under this standard
requires the reviewing court to defer to the jury’s credibility and weight determinations, because the
jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 899. “A court faced with a
record of historical facts that supports conflicting inferences must presume–even if it does not
appear affirmatively in the record–that the trier of facts resolved any such conflicts in favor of the
prosecution. . . .” Jackson, 449 U.S. at 319, 99 S. Ct. at 2793.

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Discussion
          Officer Griffin gave Appellant no field sobriety tests before placing him under arrest. There
is no evidence of a breath or blood test. Appellant’s defensive theory was that his erratic behavior
was referable to a blow on the head in the fight that gave him the cut ear and simple anger at being
told he could not buy beer.
          All three of the State’s witnesses knew Appellant. They knew how he acted when he had
the normal use of his faculties. All agreed that, at the time of his arrest, he had lost the normal use
of his physical and mental faculties. He stumbled into and around the Food Valley store. The clerk
was a former bartender. Appellant’s slurred speech, strong odor of gin and beer, and stumbling gait
convinced her he was intoxicated and that she should not sell him more beer. Her opinion was
confirmed when he returned to the store at least two more times angrily demanding that she sell him
beer, and finally cursing her with such violence that she called the police. He drove recklessly
around the gas pumps in front of the store. Immediately before Appellant’s arrest and right after
Appellant left Food Valley, Officer Baker saw Appellant turn a corner so recklessly that he ran off
the road almost into the ditch.
          When Officer Griffin stopped him, Appellant needed to lean on his truck for support and
smelled strongly of an alcoholic beverage. He repeatedly threatened to kill Officer Griffin and his
family.     Appellant’s belligerence and general condition explains Officer Griffin’s failure to
administer any field sobriety tests. Neither officer believed Appellant’s cut ear was an injury
serious enough to explain Appellant’s conduct. Donnell’s opinion that Appellant smelled like gin
was vindicated when Officer Baker found an open half gallon bottle of gin in Appellant’s truck.
          The evidence is sufficient to support Appellant’s conviction. Appellant’s sole issue is
overruled.


                                                      DISPOSITION
          The judgment of the trial court is affirmed.
                                                                 BILL BASS
                                                                    Justice
Opinion delivered May 25, 2011.
Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

                                                (DO NOT PUBLISH)
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