                                      NO. 07-07-0367-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL D

                                     AUGUST 25, 2009
                             ______________________________

                              ADRIAN M. RIVERA, APPELLANT

                                                v.

                             THE STATE OF TEXAS, APPELLEE
                           _________________________________

              FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2006-413632; HON. BRADLEY S. UNDERWOOD, PRESIDING
                         _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                  MEMORANDUM OPINION


          Appellant Adrian M. Rivera appeals from his conviction of the offense of intoxication

assault and the resulting sentence of imprisonment for a period of fifteen years in the

Institutional Division of the Texas Department of Criminal Justice. Via two points of error,

appellant contends the evidence was factually insufficient to support his conviction. We

affirm.
                                         Background


       Appellant’s 2006 indictment charging him with intoxication assault with a vehicle1

also included an enhancement paragraph setting forth appellant’s previous final felony

conviction.2 Following appellant’s plea of not guilty, the case was tried to a jury.


       At trial, evidence was presented to show that on January 1, 2006, appellant and a

female companion were celebrating New Year’s and drinking alcohol. Appellant and the

female left one house and headed to another, appellant driving her white Chevrolet

Cavalier, consuming alcohol while driving. During this drive, appellant lost control of the

vehicle and hit an unidentified object.3 As a result of the collision, his female passenger’s

arm was severely broken and bleeding.4


       Appellant continued to drive and sought help from passers-by. Emergency services

were subsequently requested. While interviewing appellant, the responding officer noticed

a strong odor of an alcoholic beverage coming from appellant’s breath, glassy bloodshot



       1
           See Tex. Penal Code Ann. § 49.07 (Vernon 2007).
       2
        At trial, appellant plead “true” to the enhancement paragraph and his punishment
range was enhanced from a third degree felony to a second degree felony pursuant to
Section 12.42 of the Penal Code. Tex. Penal Code Ann. § 12.42 (Vernon 2007). A person
found guilty of a second degree felony is subject to imprisonment for any term of not more
than 20 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code
Ann. § 12.33 (Vernon 2003).
       3
         There is some indication in the passenger’s testimony at trial that she believed the
car ran into a fence. However, a police officer testified the material he documented when
he responded to the accident was consistent with tree bark rather than a fence.
       4
           According to the passenger’s testimony, her arm “almost fell off.”

                                               2
eyes and slurred speech. The officer conducted standard field sobriety tasks and

determined appellant was intoxicated. A specimen of appellant’s blood was taken on his

arrival at the hospital and the results of the test showed he had a blood alcohol

concentration of 0.15 grams of alcohol per 100 milliliters of blood.


                                          Analysis


       In appellant’s two issues, he argues the evidence presented at trial was factually

insufficient to prove beyond a reasonable doubt that on or about January 1, 2006, he

operated a motor vehicle in a public place while intoxicated by having a blood alcohol

concentration of 0.08 or more or by not having the normal use of mental or physical

faculties by reason of introduction of alcohol into his body. To establish that appellant

committed the offense of intoxication assault, the State had to demonstrate that he, (1) by

accident or mistake, (2) while operating a motor vehicle, (3) in a public place, (4) while

intoxicated, (5) by reason of that intoxication, (6) caused serious bodily injury to another.5

See Tex. Penal Code Ann. § 49.07(a)(1) (Vernon 2003). See also Ex parte Watson, __

S.W.3d __, 2009 WL 1212565, *3 (Tex.Crim.App. 2009) (examining elements of

intoxication assault). “Intoxicated” means not having the normal use of mental or physical

faculties by reason of the introduction of alcohol, or having an alcohol concentration of 0.08

or more. See Tex. Penal Code Ann. § 49.01(2)(A), (B) (Vernon 2003). Appellant’s

argument on appeal focuses on the evidence of his intoxication.



       5
        Appellant does not challenge on appeal any of the other elements of the offense
for which he was convicted. Specifically, he does not contest the sufficiency of the
evidence his female passenger suffered serious bodily injury.

                                              3
       A factual sufficiency review considers whether the evidence supporting guilt, though

legally sufficient, is so weak that the jury’s verdict seems clearly wrong and manifestly

unjust, or evidence contrary to the verdict is such that the jury’s verdict is against the great

weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283

(Tex.Crim.App. 2008); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006);

Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). In a factual sufficiency

review, we consider all the evidence, in a neutral light. Grotti, 273 S.W. 3rd at 283;

Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. Although an appellate court’s

authority to review factual sufficiency permits the court to disagree with the fact finder’s

determinations, even to a limited degree those concerning the weight and credibility of the

evidence, the appellate court must accord them due deference. Marshall, 210 S.W.3d at

625; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). See also Steadman v. State,

280 S.W.3d 242, 246-47 (Tex.Crim.App. 2009). When there is a conflict in the evidence,

to find it factually insufficient we must first be able to say, with some objective basis in the

record, that the great weight and preponderance of all the evidence contradicts the jury’s

verdict. Watson, 204 S.W.3d at 417. We must also discuss the evidence that, according

to the appellant, most undermines the jury's verdict. Laster v. State, 275 S.W.3d 512, 518

(Tex.Crim.App. 2009); Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).


       We find the evidence factually sufficient to prove appellant operated the Cavalier

while intoxicated. The State presented testimony from the regional laboratory manager

with the Texas Department of Public Safety Crime Lab, regarding appellant’s blood alcohol

concentration. The manager testified that his test of the sample of appellant’s blood


                                               4
yielded a blood alcohol of 0.15 grams per 100 milliliters of blood, a level above the 0.08

legal level. Appellant does not challenge on appeal the evidence his blood alcohol level

at the time the sample was taken was almost double the 0.08 legal limit, nor does he

challenge the probative value of that evidence to establish he was intoxicated while he

drove.


         Appellant focuses his attack on the evidence he had lost the normal use of his

mental or physical faculties by reason of introduction of alcohol into his body. The State’s

evidence included appellant’s female passenger’s testimony at trial that she and appellant

had been drinking at a friend’s house the hour before the accident. She also testified that

she thought appellant was intoxicated. The responding police officer testified he detected

a strong odor of an alcoholic beverage coming from appellant’s breath. He also testified

that appellant admitted to drinking five beers and one “shot” prior to the accident. The

officer testified he saw that appellant’s eyes were glassy and bloodshot and his speech

was slightly slurred. The officer agreed that his report mentioned that the beer can shown

in the photograph presented at trial was cold at the time he arrived on the scene. The

officer also testified that he observed a mixed alcoholic drink in the same console of the

car. The officer further testified regarding the standard field sobriety tasks he administered

to appellant and to appellant’s poor performance on those tasks. A patrol car video

showing the administration of these tests was also presented. The officer opined that

appellant was intoxicated and alcohol caused the intoxication. The testimony of a police

officer that an individual is intoxicated is probative evidence of intoxication. Henderson v.

State, 29 S.W.3d 616, 622 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d). Further, a blood


                                              5
alcohol level beyond the legal limit, such as appellant’s, is probative evidence of a person’s

loss of his faculties. Id., citing Daricek v. State, 875 S.W.2d 770, 773 (Tex.App.–Austin

1994, pet. ref’d).


       As evidence contrary to the jury’s verdict, appellant points to evidence another

vehicle was involved in the accident. The passenger testified that while she and appellant

were driving, a white work truck “kept bumping our car” in the back, eventually hitting them

hard enough to cause their car to turn and wreck. The police officer testified appellant

initially told him that a “small dark colored sport utility vehicle had begun harassing them

as they drove home” and rammed them from behind, intentionally running them off the

road. Appellant later told the officer that he was trying to get away from the other vehicle

and that in doing so, he hit a tree or a curb.


       The trier of fact is the sole judge of the credibility of witnesses and may believe or

disbelieve any part of a witness’s testimony. Gaines v. State, 874 S.W.2d 733, 734

(Tex.App.–Houston [1st Dist.] 1994, no pet.). Further, the trier of fact may believe a witness

even though his testimony is contradicted.           Sharp v. State, 707 S.W.2d 611, 614

(Tex.Crim.App. 1986); Gaines, 874 S.W.2d at 735. The jury here was free to disbelieve

the testimony that another vehicle hit the Cavalier from behind. The police officer testified

he did not think the Cavalier was hit by another vehicle. He said there was damage to the

Cavalier’s front passenger door but no recent damage to the rear of the vehicle. He said

the damage that was present on the rear of the car appeared to be old, as it was covered

in road grime. He also testified during re-direct that the passenger told him she did not



                                                 6
remember being chased or hit by another vehicle but appellant told her that they had been

hit.


       Appellant also points to the police officer’s testimony that it was windy when he

administered the field sobriety tasks and that wind conditions may affect a person’s ability

to perform on the tests. He also argues the verdict is contradicted by the officer’s

testimony that after finding tree bark embedded in the Cavalier, the officers tried

unsuccessfully to find a tree that had been damaged or had white paint on it.


       Lastly, we note that appellant seems to advance the argument that the State’s proof

suggests only that he was intoxicated and was involved in a car accident, but does not

prove he was involved in the accident because he was intoxicated. This argument also

relies on the statements of appellant and his passenger regarding the involvement of a

second vehicle.    As noted, we find the jury rationally could have discounted those

statements. Instead, the jury rationally could have accepted the opinion of the officer that

“the accident was the direct result of [appellant] operating the vehicle while intoxicated.”


       Having considered all the evidence in a neutral light, we find that appellant has

shown, at most, that the evidence conflicted with respect to whether his intoxication caused

the accident. The State’s evidence was not so weak that the jury’s verdict seems clearly

wrong and manifestly unjust. A verdict is not manifestly unjust simply because the jury

resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d

404, 410 (Tex.Crim.App. 1997). Nor do we find that the great weight and preponderance




                                             7
of all the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. Accordingly,

we overrule appellant’s two issues and affirm the judgment of the trial court.




                                   James T. Campbell
                                        Justice


Do not publish.




                                            8
