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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 32,938 consolidated with
 5                                                               NO. 33,012
 6 SALVADOR GALLEGOS,

 7          Defendant-Appellant.


 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Briana Zamora, District Judge


10 Gary K. King, Attorney General
11 Corinna Laszlo-Henry, Assistant Attorney General
12 Santa Fe, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender
15 Vicki W. Zelle, Assistant Appellate Defender
16 Albuquerque, NM

17 for Appellant


18                                 MEMORANDUM OPINION
 1 KENNEDY, Chief Judge.

 2   {1}   Salvador Gallegos (Defendant) appeals the district court’s on-record affirmance

 3 of his metropolitan court conviction for aggravated driving while intoxicated. In our

 4 notice of proposed summary disposition, we proposed to affirm. In response to this

 5 Court’s notice, Defendant has filed a memorandum in opposition, which we have duly

 6 considered. As we do not find it persuasive, we affirm.

 7   {2}   Defendant contends that there was insufficient evidence that he was impaired

 8 to the slightest degree by alcohol or that he refused to submit to a breath alcohol test.

 9 [DS 18] In this Court’s notice of proposed summary disposition, we proposed to hold

10 that there was sufficient evidence of impairment based on testimony that Defendant

11 came to a stop at an intersection despite the fact that there was no stop sign or any

12 other apparent reason for him to stop. His speech was slurred. He had bloodshot and

13 watery eyes, smelled of alcohol, and admitted to drinking a couple of beers. He

14 exhibited clues of intoxication during two field sobriety tests, and he refused to take

15 a breath alcohol test, providing evidence of consciousness of guilt. See State v. Neal,

16 2008-NMCA-008, ¶¶ 4-5, 29, 143 N.M. 341, 176 P.3d 330 (holding that there was

17 sufficient evidence to support a DWI conviction where the defendant smelled of

18 alcohol, had bloodshot and watery eyes, admitted to drinking earlier, committed a

19 traffic violation, showed signs of intoxication during the field sobriety tests, and

20 refused to take a breath alcohol test, from which the district court could properly infer

                                               2
 1 a consciousness of guilt). We proposed to hold that there was sufficient evidence of

 2 Defendant’s refusal to take the breath test based on the officer’s testimony that

 3 Defendant did not ever consent to testing or seek to rescind his initial refusal. We

 4 stated that, although Defendant testified that after his initial refusal he changed his

 5 mind and asked that he be allowed to take the test where the evidence was conflicting,

 6 we defer to the metropolitan court as the finder of fact. See State v. Vigil, 1975-

 7 NMSC-013, ¶ 16, 87 N.M. 345, 533 P.2d 578 (holding that it is for the factfinder to

 8 determine the credibility of the witnesses and the weight to be given to their testimony

 9 and that the factfinder may reject a defendant’s version of an incident).

10   {3}   In Defendant’s memorandum in opposition, he continues to make the same

11 arguments raised in his statement of the issues before the district court and in his

12 docketing statement. For the most part, these arguments are based on Defendant’s

13 assertion that this Court should reweigh the evidence on appeal, which this Court will

14 not do. See State v. Sutphin, 1988-NMSC-031, ¶ 23, 107 N.M. 126, 753 P .2d 1314

15 (stating that an appellate court “may neither reweigh the evidence nor substitute its

16 judgment for that of the [factfinder]”). “Our courts have repeatedly held that, in

17 summary calendar cases, the burden is on the party opposing the proposed disposition

18 to clearly point out errors in fact or law.” Hennessy v. Duryea, 1998-NMCA-036,

19 ¶ 24, 124 N.M. 754, 955 P.2d 683. Defendant’s memorandum provides no facts or



                                              3
1 authority that this Court has not already considered or that persuade this Court that its

2 proposed summary disposition should not be made.

3   {4}   Accordingly, for the reasons stated here and in our notice of proposed summary

4 disposition, we affirm.

5   {5}   IT IS SO ORDERED.



6                                          ____________________________________
7                                          RODERICK T. KENNEDY, Chief Judge


8 WE CONCUR:



 9 _________________________________
10 MICHAEL D. BUSTAMANTE, Judge



11 ________________________________
12 M. MONICA ZAMORA, Judge




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