AIfirJIIC(I; Opinion Filed   November 30, 2012.




                                                In The
                                 Quiirt of Aiprak
                          Fifth 1iitrirt of cxa at Ia1tai
                                        No. 05-11-01511-CR


                             MAYANI() JOHN EMALE, Appellant

                                                  V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the County Criminal Court No. 8
                                    Dallas County, Texas
                            Trial Court Cause No. MB1034281J


                              MEMORANDUM OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Moseley

        Ajury convicted Mayanio John Emale of driving while intoxicated and assessed punishment

at 90 days’ confinement and a $1,500 fine. Emale appeals and, in three issues, argues the evidence

was insufficient to support the conviction; the trial court erred in limiting Emale’s closing arguments

to facts deducible from the record; and the trial court erred by not allowing Emale to conduct voir

dire on a witness to determine whether reasonable suspicion existed for an investigatory detention.

The background of the case and the evidence adduced at trial are well known to the parties thus, we

do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue

this memorandum opinion. TEX. R. App. P. 47.1. We affirm the judgment of the trial court.
        ‘The record contains evidence that two drivers were almost struck by Emale when he made

a sharp left turn into oncomin traffic. l’he tun drivers who had almost been struck Ibliowed Emale

and then cornered him when he pulled into a parking lot. One of the drivers called the police while

the other prevented Emale hom driving away by taking his car keys. Officer Travis 1-luckaby

responded to the emergency call and attempted to administer a horizontal gaze nystagmus

intoxication test but stopped because Emale was swaying dangerously and 1—luckahy teared for

Emale’s safety. Emale was arrested and subsequently tried.         At trial, both drivers and officer

Iluckaby testi tied they believed Emale was intoxicated because he smelled of alcohol, lacked normal

coordination, and had slurred speech.

        In his first point of error, Emale argues that there was insufficient evidence to support his

conviction because the state failed to demonstrate a temporal link between his intoxication and his

operation of a vehicle.

        We apply the appropriate legal sufficiency standard of review. See Jackson v.   Virginia.   443

U.S. 307, 319 (1979); Adarnes v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). In a legal

sufficiency review. “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.” Adames, 353 S.W.3d at 860. This standard “recognizes the trier of

fact’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable

inferences from the evidence.” Id. We measure the sufficiency of the evidence by the elements of

the offense as defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997)).

       A person commits the offense of driving while intoxicated if the person is intoxicated while

operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2012).
“Intoxicated’ means not having the normal use of mental or physical faculties by reason of the

 introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or

more ot those substances, or any other substance into the body. Id.         49.0l(2)( ). To support a

conviction lbr DWI, “there must be a temporal link between the defimdant’s intoxication and his

driving, but a conviction can be supported solely by circumstantial evidence.” Kuciemba v. State,

310 S.W.3d 460,462 (Tex. Crim. App. 2010).

        Viewing the evidence in a neutral light, we cannot say the evidence of guilt is so obviously

weak as to undermine confidence in the fact finder’s determination, or that the proof of guilt is

greatly outweighed by contrary proof. See Johnson     i.   State, 23 S.W.3d 1. 1 0—l I (‘[cx. Crim. App.

2000). Here, both drivers testified that they had seen Emale driving—indeed he had almost struck

them with his vehicle—immediately before they cornered him in the parking lot. They testified that

once cornered, they observed signs of intoxication, including slurred speech, inability to sit upright,

lack of normal coordination, and the stench of alcohol . Likewise, Huckaby testified that the engine

of Emale’s car was still warm when he arrived at the scene. This testimony, if credited by the fact

finder, is sufficient to create a direct temporal link between Emale’s intoxication and his driving of

a vehicle. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603

(‘[cx. Crim. App. 2003). We conclude the evidence is factually sufficient to support the conviction.

We overrule Emale’s first point of error.

       in his second issue, Ernale argues the trial court erred when it limited Emale’s closing

arguments to evidence actually presented at trial.

       The standard of review for improper jury argument is abuse of discretion. Powell v. State,

63 S.W.3d 435, 438 (Tex. Crim. App. 2001). The Court of Criminal Appeals identified five areas

of permissible jury argument: summation of evidence, reasonable deductions from evidence,
response to detendants argument, plea br law      entbrcement,   and invited argument Albiar v. State.

739 S.W.2d 360. 362 (Tex. Crim, App. I 987). A reftrence to facts not supported by the record is

improper argument. Al/ridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988).

        Here, during closing, argument, Emale’s counsel alluded to the possibility that Emale’s

intoxication was caused by a pain pill he had taken between the time he pulled his car over and the

arrival of law enforcement officers, thus negating the temporal link between his driving and his

intoxication. A search of the record shows that no evidence was presented that Emale possessed or

consumed pain pills. Because Emale’s counsel’s allusion to pain pills references facts not supported

by the record, the trial court did not abuse its discretion by limiting that line of argument. As such.

we overrule Emale’s second point of error.

        In his third issue, Ernale argues the trial court erred when it refused to allow him to voir dire

Officer Huckaby regarding the existence of reasonable suspicion for his detention.

       To preserve error regarding a trial court’s decision to exclude evidence, the complaining party

must comply with Rule of Evidence 103 by making an “offer of proof’ which sets forth the

substance of the proffered evidence. AIavs v. State, 285 S.W.3d 884. 889 (Tex. Crim. App. 2009).

A mere statement of intent to question a witness regarding the existence of reasonable suspicion is

insufficient to preserve error. See Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993).

Rather, the party must present the court with a concise statement that conveys the content of the

testimony the party desires to elicit from the witness. id.

       Here, Emale preserved nothing for our review. During direct examination of Huckaby,

following a question concerning outward signs of intoxication, counsel for Emale interjected, “I’m

gonna make an objection based on reasonable suspicion in detaining the defendant. Permission to

voir dire the witness?” The objection was overruled and no offer of proof was made.




                                                 -4-
            Merely stating a desire to ask questions about Huckaby’s basis for reasonable suspicion. as

 Emale’s counsel did here, did not apprise the trial court ofthe basis for the objection or the testimony

 desired. Because Emale failed to make an offer ofproof. he preserved nothing for our review. We

 overrule Emale’s third point of error.’

           Emale attempts to raise a new, fourth issue in his reply brief. A reply brief is only allowed

 to address matters raised in the appellee’s brief. See ‘FEX. R. APP. P. 38.3; Barrios i’. State, 27

 S.W.3d 313,322 (Ta. App.—Houston[ 1st Dist] 2000, pet. ref’d). Issues may not be raised for the

 first time in a reply brief. See Barrios. 27 S.W.3d at 322. Because Emale did not raise the relevant

 issueinhisoriginalbriefandtheStatedidnotraisetheissueinitsbriefEmalemaynotnisethe

 issue for the first time in his reply brief. Accordingly, we decline to address Emale’s fburth issue.

           Having overruled all of Emale’s points                                                                      trial court




                                                                           K
Do Not Publish
T€x. R. An. P.47
II 1511F.U05




       Eva if a ofl&ofpeoofbad beat mad% the cant likely would be harmless. Eimle was able to question Huckaby about probable cause
quite extensively during oross.ccaminstion.




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                               (itiiirt nf
                       FiftI! Jiitrirt nf           xa at at1a

                                      JUDGMENT
MAYANIO JOHN EMALE, Appellant                      Appeal from the County Criminal Court No.
                                                   8 of Dallas County, Texas. (Tr.Ct.No.
No. 05-1 1-0151 1-CR         V.                    MB 10342813).
                                                   Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                       .Justices Fillmore and Myers participating.




       Based on the (‘ourts opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 30, 2012.
                                                                       F!
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                                                  J I jM OSEL bY
                                                  KJSTICE
