                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-05-248-CR


KENNETH J. MAXWELL                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

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                                   OPINION

                                    ------------

      Appellant Kenneth J. Maxwell challenges the jury’s verdict finding him

guilty of misdemeanor driving while intoxicated.

                               Factual Summary

      On April 22, 2003, at 2:00 a.m., Officer James Hill stopped appellant for

driving eighty miles per hour in a sixty-miles-per-hour zone on the West

Freeway in Fort Worth. Officer Hill also noticed that appellant failed to use his

turn signal when he changed lanes and that appellant was weaving. Appellant
admitted to Officer Hill that he had been drinking after Officer Hill noticed an

odor of alcohol and appellant’s bloodshot eyes. Appellant, however, refused

to perform any sobriety tests in the field or later at the police department.

After arresting him and taking him to the police department, appellant

eventually submitted to a breath test approximately one hour later, which

indicated he was legally intoxicated at 0.11. He was charged by information

under two theories of intoxication: loss of normal use of mental and physical

faculties or an alcohol concentration of at least 0.08. The court denied his

pretrial motion to suppress the evidence and any statements obtained as a

result of his arrest. A jury found him guilty. The trial court sentenced him to

180 days’ confinement with a $450 fine. The court suspended his sentence

and placed him on twelve months’ community supervision.

                                Issues on Appeal

      In appellant’s first point, he contends the evidence is legally insufficient

to prove either of the State’s theories of intoxication—loss of normal use of his

mental and physical faculties or an alcohol concentration of at least 0.08. In

his second point, he challenges the factual sufficiency of the evidence to

support the jury’s verdict. In his third point, appellant asserts trial court error

in overruling his motion to suppress the evidence based upon a lack of probable

cause to arrest appellant. In his fourth point, he asserts error in overruling the

                                        2
motion to suppress the breath test results because he was not afforded his right

to “contact a physician to obtain a specimen of his blood.” In his final point,

appellant claims trial court error in overruling his objection to allegedly improper

jury argument at the guilt-innocence phase of the trial. We begin our discussion

with appellant’s suppression points.

                                  Suppression Issues

      Appellant contends that his arrest was illegal because it was made

without probable cause in violation of the Fourth Amendment and the United

States Constitution; article I, section 9 of the Texas Constitution; and article

38.23 of the Texas Code of Criminal Procedure.1 Appellant contends that the

arresting officer’s testimony shows that he had made the decision to arrest

appellant prior to the time appellant got out of his car because he testified that

appellant was “possibly intoxicated above the legal limit.” Appellant believes

Officer Hill made his decision to arrest him after observing factors only showing

that appellant had been drinking, not that he was intoxicated, e.g., red eyes,

smell of alcohol, refusal to perform field sobriety tests, speeding, and

appellant’s admission that he had been drinking. He also contends, without




      1
          Appellant does not challenge the validity of the initial traffic stop.

                                           3
authority, that the refusal to perform field sobriety tests cannot be used as a

factor in establishing probable cause to arrest.

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court's decision, we do not engage in our own

factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony.           State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889,

891 (Tex. Crim. App.1999). Therefore, we give almost total deference to the

trial court’s rulings on (1) questions of historical fact, even if the trial court's

determination of those facts was not based on an evaluation of credibility and

demeanor; and (2) application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101,

108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53

(Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort

Worth 2004, pet. ref’d). But when the trial court's rulings do not turn on the

credibility and demeanor of the witnesses, we review de novo a trial court’s

                                         4
rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604,

607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53. Stated another

way, when reviewing the trial court’s ruling on a motion to suppress, we must

view the evidence in the light most favorable to the trial court's ruling. State

v. Kelly, 204 S.W .3d 808, 818 (Tex. Crim. App. 2006). When the record is

silent on the reasons for the trial court’s ruling, or when there are no explicit

fact findings and neither party timely requested findings and conclusions from

the trial court, as in this case, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most

favorable to the trial court’s ruling, supports those findings.    Id.   W e then

review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling. Id.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004); Ross, 32

S.W.3d at 856; Romero, 800 S.W.2d at 543; Martinez v. State, 236 S.W.3d

361, 367 (Tex. App.—Fort Worth 2007, pet. dism’d). Further, as noted by the

State in its brief, we are to review the trial court’s decision by looking at and




                                        5
considering the “totality of the circumstances.” Wiede v. State, 214 S.W.3d

17, 24-25 (Tex. Crim. App. 2007).

         We should not, as appellant does, look at the facts in existence piecemeal

or isolate our review to those facts elicited only on cross-examination by the

defense.     Looking to the totality of these circumstances, there were other

additional facts that Officer Hill could have considered in establishing probable

cause: it was 2:00 a.m. and appellant admitted he was coming from a place

that the officer knew sold alcohol; appellant admitted he had been drinking as

well; appellant was not just speeding but he was speeding while admittedly

having at least drunk some alcohol; appellant passed the officer while speeding;

appellant was also weaving in his own lane and had failed to use his turn signal

when he changed lanes; and appellant refused to perform any field sobriety

tests.

         Appellant contends that we may not include an appellant’s refusal to

submit to field sobriety tests in our probable cause review, but he cites no

authority for this proposition, and we likewise have been unable to find

authority that supports his proposition. The only case we have found directly

on point states that we may consider an appellant’s refusal to submit to an

officer’s request for field sobriety tests in our probable cause review. State v.

Garrett, 22 S.W.3d 650, 655 (Tex. App.—Austin 2000, no pet.). In that case,

                                          6
the Austin Court of Appeals approved considering the defendant’s refusal to

participate in field sobriety tests because it was a “direct result of the

defendant’s conduct, i.e., his refusal to participate in any of these tests.” Id.

The court stated that officers may consider a defendant’s refusal as a part of

the “totality of the circumstances.” 2 This does not modify an older Fort Worth

case that supports the proposition that the refusal to undertake field sobriety

tests alone is insufficient probable cause. Jackson v. State, 681 S.W.2d 910,

912 (Tex. App.—Fort Worth, no pet.).         Here, there are other factors that

additionally support the finding of probable cause. Thus, we conclude and hold

that when considering the totality of all the evidence admitted at trial and doing

so in the light most favorable to the trial court’s ruling, there was sufficient

evidence to establish probable cause to arrest appellant. Thus, we conclude

that the trial court correctly denied appellant’s motion to suppress. We overrule

appellant’s third point.




      2
       We also note that there are cases that support the admission of the
refusal to participate in field sobriety tests in the context of the sufficiency of
the evidence on intoxication—a different question from its consideration in the
probable cause analysis. See Dawkins v. State, 822 S.W.2d 668, 671 (Tex.
App.—Waco 1991), pet. ref’d, 825 S.W.2d 709 (Tex. Crim. App. 1992);
Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.—Corpus Christi 1987),
aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990).

                                        7
      In appellant’s other point complaining about the denial of his motion to

suppress, he contends that the results of his breath tests were inadmissible

because he was not afforded “his right to contact a physician to obtain a

specimen of his blood.” Appellant contends that transportation code section

724.019(a)–(b) was violated.3 That section provides that a person arrested for

a driving while intoxicated offense should be given a reasonable opportunity to

contact a physician or nurse to take an additional specimen of blood once the

person has submitted to the taking of a specimen of breath, blood, urine, or

other specimen. T EX. T RANSP. C ODE A NN. § 724.019(a), (b) (Vernon 1999). In

particular, appellant contends that he was not given a reasonable opportunity

to contact such a person and that the State showed no “inability” to do so.

      According to appellant’s testimony, after he had consented to and given

a breath specimen, he was taken from his holding cell into a hallway and given

an opportunity to get an additional test. He testified that he was then told that

there would be a time limit on getting such a test done and that he was free to

call a physician, but they never gave him access to a phone. Appellant asked

to be taken to a hospital for a test, and he also asked whether the police had


      3
      Appellant does not contend that his consent to give a breath specimen
was coerced or involuntary as he had argued at trial in addition to this
complaint. See Harrison v. State, 205 S.W.3d 549, 553 (Tex. Crim. App.
2006); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993).

                                       8
someone on staff who could give him a blood test. Both requests were denied.

So appellant gave them the name of a friend and asked them to call her to see

if she could contact someone to give him the test. No one told him if they

reached her or the result of the conversation, according to appellant. Officer

Hill conceded that appellant wanted a blood test and that he had a right to

contact someone to try to get a blood test once he submitted to a breath test.

He also admitted on cross-examination that he had only seen one person in

custody ever get another specimen, and in that case, the specimen was taken

by the person’s wife who happened to be a doctor.              Officer Hill further

acknowledged that the law required the additional test to be done within a two-

hour window from arrest and that appellant was given his breath test at about

3:00 a.m., already one hour and two minutes after his arrest. Officer Hill said

appellant was allowed to call his wife or girlfriend but that the police

department’s policy was not to take anyone to another facility for any

additional testing.

      Section (c) of 724.019 provides that a peace officer is not required to

transport someone in custody to a facility for testing, and further, section (d)

provides that the “failure or inability to obtain an additional specimen or analysis

under this section does not preclude the admission of evidence relating to the

analysis of the specimen taken” by the officer originally. T EX. T RANSP. C ODE

                                         9
A NN. § 724.019(c), (d) (emphasis supplied). Thus, under this very statute there

are two scenarios under which the failure to obtain another specimen has no

effect on admissibility of the original breath specimen: neither the “failure” nor

the “inability” to obtain the additional blood specimen affects the admissibility

of the original breath test. In spite of this, appellant argues for the suppression

of the original breath test due to the officers’ failure to provide him with a

reasonable opportunity to obtain a blood test and the State’s failure to prove

“inability.”

      Statutory construction is a question of law for the courts to determine.

Jones v. State, 175 S.W.3d 927, 930 (Tex. App.—Dallas 2005, no pet.). We

begin with the plain and common meaning of the statute. Bargas v. State, 164

S.W.3d 763, 772 (Tex. App.—Corpus Christi 2005, no pet.).              We are to

interpret words and phrases in context and construe them according to the

rules of grammar and common usage.           T EX. G OV’T C ODE A NN. § 311.011

(Vernon 2005). We are to presume that the entire statute is to be effective,

and we may consider the object to be attained regardless of whether the

statute is determined to be ambiguous or not. Id. §§ 311.021, 311.023. If the

language is clear, we must interpret it according to its terms. Bargas, 164

S.W.3d at 772. Only if the interpretation leads to absurd results will we look

to extra-textual factors to determine legislative intent. Id.

                                        10
      When we interpret a statute we seek to effectuate the collective
      intent or purpose of the legislators who enacted the legislation. . . .
      [W]e must interpret an unambiguous statute literally, unless doing
      so would lead to an absurd result that the legislature could not
      possibly have intended. . . . Where the statute is clear and
      unambiguous, the Legislature must be understood to mean what it
      has expressed, and it is not for the courts to add or subtract from
      such a statute.

Seals v. State, 187 S.W.3d 417, 419–20 (Tex. Crim. App. 2005).

      Here, the language is clear: the legislature specifically addressed the

ramifications of “failure or inability” to obtain another specimen and it clearly

provided that such failure or inability would have no effect on the admissibility

of the specimen obtained by the officer.       And while we may question the

legislature’s failure to provide a remedy for non-compliance, we cannot say that

the failure to do so is absurd. The legislature obviously wanted to make such

opportunity available to such drivers but did not want to risk all prosecutions

simply because an additional test was unobtainable for some reason. Because

the statute itself states that the inability or failure to obtain another specimen

does not affect the admissibility of the original breath specimen, we must

follow the dictates of the statute and hold that there was no trial court error in

denying appellant’s motion to suppress on this basis. We overrule appellant’s

fourth point and turn to appellant’s sufficiency points.




                                        11
                          Sufficiency of the Evidence

      In appellant’s first point, he contends the evidence is legally insufficient

to support the verdict, and in his second point, he contends the evidence is

factually insufficient to support the verdict.

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      Under appellant’s legal sufficiency challenge, he complains about the lack

of evidence to support the jury’s finding of a level of alcohol concentration of

.08 or greater. In particular, he complains that because the test was “given

within an hour of the stop,” there is only evidence of his alcohol concentration

one hour after the stop as opposed to evidence of his blood alcohol

concentration—“BAC”—at the time he was observed driving while allegedly

intoxicated. Appellant contends the evidence shows that he could have been

below the .08 level because no one testified that he would have been at or

above the legal limit an hour earlier. The Texas Court of Criminal Appeals has

held that breath tests are probative and admissible even in the absence of

                                       12
retrograde extrapolation testimony. Stewart v. State, 129 S.W.3d 93, 97 (Tex.

Crim. App. 2004). The lack of extrapolation evidence goes to its weight, not

its admissibility. State v. Mechler, 153 S.W.3d 435, 449 (Tex. Crim. App.

2005).   Thus, the breath test showing a BAC of .11 is some evidence of

intoxication.

      Furthermore, appellant was charged under two theories of intoxication:

loss of normal use and excess BAC. Although somewhat unclear, appellant

appears to argue that the jury could not rely on the alternate theory—loss of

normal use—because the evidence admitted at trial on this theory was also

legally insufficient. The evidence admitted, however, shows that the officer

testified that appellant was stopped because he was traveling at about eighty

miles per hour at 2:00 a.m. on Fort Worth’s West Freeway while drifting two

times within his lane and changing lanes once without a proper signal; that

appellant passed the officer in his patrol car while traveling approximately

twenty miles per hour over the posted speed limit; that Officer Hill noticed an

odor of alcohol and bloodshot eyes; that appellant admitted he had been

drinking and had come from the Illusions bar where he had been drinking; and

appellant refused to perform field sobriety tests. The jury was thus free to

believe, based upon the totality of the circumstances, that appellant was

intoxicated while driving based upon the absence of the normal use of his

                                      13
mental or physical faculties. Therefore, the absence of extrapolation evidence

as to his blood alcohol level at the time of the stop was irrelevant to the jury’s

finding of guilt because he was charged under both theories. We overrule

appellant’s first point.

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

                                        14
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

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

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

                                       15
         Reviewing the evidence in a neutral light, we cannot say that there was

factually insufficient evidence to support the jury’s verdict. Here, appellant

points particularly to the arresting officer’s testimony conceding that appellant

behaved normally and walked and talked normally. However, when viewing

this evidence, we must also consider the other evidence previously mentioned

in our legal sufficiency review, and review all the evidence in a neutral light.

And when so reviewing the evidence, including the evidence of appellant’s

refusal to perform field sobriety tests, we conclude the evidence is also

factually sufficient to support the jury’s verdict. We overrule appellant’s second

point.

                             Improper Jury Argument

         Finally, we turn to appellant’s last point, in which he contends that the

trial court erred by overruling his objection to an instance of allegedly improper

jury argument during guilt/innocence. In particular, appellant contends that the

prosecutor suggested that defense counsel “was acting unethically in trying to

distract the jurors from focusing on the evidence against appellant by ‘putting

everyone else on trial.’” Appellant objected to the following:

               [PROSECUTOR]: Of the fifteen minutes that Defense Counsel
         got up here and talked to you [during jury argument], ten of those
         minutes were spent talking about somebody else besides that
         Defendant, because that’s what he was trying to do, put everybody
         else on trial.

                                         16
             [DEFENSE COUNSEL]: Objection, Judge. It’s an attempt to
      strike at the Defendant over Counsel’s shoulders.

           [PROSECUTOR]: Put everyone else on trial to distract.
      [Emphasis added].


Appellant contends this argument “intentionally sought to distract the jurors

from the evidence against appellant by putting ‘everybody else on trial.’”

Appellant also contends this is an attempt to strike at appellant over the

shoulders of his counsel and an attempt to divert the jury from performing its

role as trier of fact.

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973). If a jury argument exceeds the

bounds of proper argument, the trial court’s erroneous overruling of a

defendant’s objection is not reversible error unless it affected the appellant’s

substantial rights. T EX. R. A PP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677,

692-93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).          In


                                      17
determining whether the appellant’s substantial rights were affected, we

consider (1) the severity of the misconduct (i.e., the prejudicial effect of the

prosecutor’s remarks), (2) curative measures, and (3) the certainty of,

conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93; Mosley,

983 S.W.2d at 259.

      The Court of Criminal Appeals has consistently held that arguments
      that strike at a defendant over the shoulder of his defense counsel
      are improper. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim.
      App. 1995). Although the Court has found it impossible to
      articulate a precise rule regarding these types of arguments, it has
      cautioned that “a prosecutor runs a risk of improperly striking at a
      defendant over the shoulder of counsel when the argument is made
      in terms of defense counsel personally and when the argument
      explicitly impugns defense counsel's character.” Mosley v. State,
      983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Even if a
      prosecutor's statements are intended as a rebuttal, the legitimate
      arguments of defense counsel cannot serve as a basis for
      permitting prosecutorial comments that "cast aspersion on defense
      counsel's veracity with the jury."

Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (quoting Dinkins, 894 S.W.2d at 357).

      The State contends the argument was a proper response to defense

counsel’s arguments that questioned some of the State’s witnesses, Officer

Hill, Mark Fonderen, and the intoxilyzer operator. We agree. When we look at

the argument in the context of all of appellant’s arguments and all of the

witnesses’ testimony, we can see that the remark was an attempt to redirect


                                      18
the jury to the testimony and evidence that was admitted yet not rebutted as

opposed to actually “trying to put everyone else on trial.” The argument is

more in the nature of a colloquialism and an attempt to respond to appellant’s

closing argument that critiqued a lot of the State’s witnesses and case. Thus,

we conclude that the prosecutor’s argument was a proper response to opposing

counsel’s arguments. We overrule appellant’s fifth point.

                                 Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.

                                                TERRIE LIVINGSTON
                                                JUSTICE


PANEL B:    LIVINGSTON, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: March 13, 2008




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