                            NUMBER 13-13-00597-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TORIBIO QUINTERO,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                    On appeal from the 147th District Court
                          of Travis County, Texas.


                        MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Benavides

      By two issues, appellant Toribio Quintero challenges his conviction for felony

driving while intoxicated, a third degree felony.   See TEX. PENAL CODE ANN. §§ 49.04,

49.09 (West, Westlaw through Ch. 46 2015 R.S.).            Quintero challenges: (1) the

sufficiency of the evidence and (2) the admissibility of a warrantless blood draw. We
affirm.

                                       I.        BACKGROUND1

          At a jury trial, Gloria Pineda testified that on January 29, 2012, she called 911 to

report a reckless driver. She told the operator she observed a vehicle swerving on the

road. When Pineda pulled up next to the vehicle, she observed a man who was “drinking

something in a paper sack” and thought he was drunk.              Pineda followed the vehicle until

it came to a stop, and she notified the 911 operator where the vehicle was located.

          Officer Steven Constable with the Austin Police Department was the first to arrive

at the scene and made contact with the vehicle.           Officer Constable found Quintero in the

driver’s seat, with the vehicle off, but the keys in the ignition.             Quintero told Officer

Constable that he had been “cruising.” According to Officer Constable, Quintero had

slurred speech and an odor of alcohol about him.             Quintero stated to Officer Constable

that he had drank six beers.         Officer Constable was able to locate three cans of beer

outside of Quintero’s vehicle that were empty but still cold to the touch and two beer cans

inside the vehicle, one empty and one unopened, that were both still cold to the touch.

Quintero stated to Officer Constable that he was hard of hearing and Officer Constable

testified that Quintero’s answers did not always relate to the questions he asked.

          Officer Lawrence Nicoletti, also with the Austin Police Department, testified that he

was the DWI officer involved in this case and performed the Standardized Field Sobriety

Tests on Quintero at the scene.             Officer Nicoletti stated he noticed that Quintero had


          1This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
Ch. 46 2015 R.S.).
         Quintero was granted an out-of-time appeal by the Court of Criminal Appeals when the trial court
failed to appoint an appellate attorney following his trial counsel’s request at sentencing.

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bloodshot, glassy eyes, slurred speech, and an odor of alcohol.                      Quintero stated to

Officer Nicoletti he had consumed five beers.                   Officer Nicoletti testified Quintero

displayed multiple clues on the field sobriety tests that indicated signs of intoxication.

Officer Nicoletti and the other officers discussed if they would be able to prove that

Quintero was driving since none of them observed Quintero driving.                         However, the

officers determined they could prove the driving element based on Pineda’s statements

and Quintero’s own admission of “cruising.”              Quintero refused a breath test and Officer

Nicoletti decided to draw Quintero’s blood based upon Quintero’s previous convictions

for driving while intoxicated.        See TEX. PENAL CODE ANN. §49.04; TEX. TRANSP. CODE

ANN. § 724.012 (West, Westlaw through Ch. 46 2015 R.S.).

         The blood evidence was admitted at trial without objection from Quintero’s trial

counsel. 2    Austin Police Department chemist Glenn Carl Harbison testified as to the

results of the blood draw evidence.               He stated the test showed Quintero’s blood

contained .165 grams of ethanol per 100 milliliters of blood, or about two times the legal

blood alcohol content limit of .08 in the State of Texas.              See TEX. PENAL CODE ANN. §

49.01.

         Corporal Ryan Huling of the Austin Police Department was called as a witness by

the defense.      He was also at the scene and spoke to Pineda by telephone.                     Corporal

Huling stated Pineda had told him she did not want to return to the scene, meet with

officers, or participate with the investigation any further. Corporal Huling also testified

that Pineda just wanted to get Quintero off the streets and when she was told she needed


         2The record also shows that Quintero did not file a pre-trial motion to suppress, nor did he urge a
motion to suppress at trial.

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to identify Quintero, Pineda told him “well, then he wasn’t driving.”   Corporal Huling also

testified that it was common for witnesses to disappear and not want to be involved after

initial contact.    Corporal Huling stated Pineda seemed confused about the location she

saw Quintero driving in.      However, he later admitted he was trying to get information out

of Pineda and she was answering questions to confirm Quintero’s general location.

Corporal Huling also admitted that Pineda was the only person who could place Quintero

behind the wheel driving the vehicle.

       Quintero also testified in his defense.     He admitted to drinking alcohol but said it

was much earlier in the day at a local park. Quintero admitted during cross-examination

that he was intoxicated at the time the officers arrived.   However, Quintero stated he was

in his vehicle to sleep off his intoxication and was going to return home when he felt sober,

but that he had not been driving.        Quintero also stated that he believed Pineda was

“making up” her story because he had seen a vehicle illegally dumping trash earlier in the

day and honked at them, and the vehicle was a similar make and model of the vehicle

Pineda described herself being in.

       The jury found Quintero guilty of felony driving while intoxicated.   See TEX. PENAL

CODE ANN. §§ 49.04, 49.09.         Quintero stipulated to two prior driving while intoxicated

convictions.       The indictment also contained enhancement paragraphs of two other prior

felony convictions, which elevated Quintero’s range of punishment to that of a habitual

offender.    See Id. § 12.42.      The trial court sentenced Quintero to twenty-five years

imprisonment in the Texas Department of Criminal Justice—Institutional Division.         This

appeal follows.



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                              II.    SUFFICIENCY CHALLENGE

       By his first issue, Quintero challenges the sufficiency of the evidence to sustain his

conviction for felony driving while intoxicated based on Pineda’s testimony.

       A.     Standard of Review and Applicable Law

       In reviewing the sufficiency of evidence to support a conviction, we consider all of

the evidence in the light most favorable to the verdict and determine whether, based on

that evidence and reasonable inferences therefrom, a rational fact finder could have found

the essential elements of the crime beyond a reasonable doubt.            Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.

App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see also Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.).              In viewing the

evidence in the light most favorable to the verdict, we 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 to their testimony.    Brooks, 323 S.W.3d at 899.         “It is also the

exclusive province of the jury to reconcile conflicts in the evidence.”     Wesbrook v. State,

29 S.W.3d 103, 111 (Tex. Crim. App. 2000).        It is unnecessary for every fact to point

directly and independently to the guilt of the accused; it is enough if the finding of guilty

is warranted by the cumulative force of all incriminating evidence.       Winfrey, 393 S.W.3d

at 768. Therefore, in analyzing legal sufficiency, we determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.      Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Our review of "all of the evidence" includes

evidence that was properly and improperly admitted.         Id. When the record supports

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conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Id.        Direct and circumstantial

evidence are treated equally in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.   Id.

       The elements of the offense are measured as defined by a hypothetically correct

jury charge.   Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).          Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was tried.

Id.   Under a hypothetically correct jury charge, Quintero is guilty of driving while

intoxicated if he was intoxicated while operating a motor vehicle in a public place.     See

TEX. PENAL CODE ANN. § 49.04.

       B.      Discussion

       Quintero argues exclusively that the evidence was insufficient based on Pineda’s

testimony alone.   Both Pineda and Quintero testified at trial. The jury, as the sole judge

of the credibility of the witnesses, made the determination that Pineda’s testimony was

credible. The record shows that Pineda was the only person who actually saw Quintero

driving that evening.   The officers involved in Quintero’s arrest testified that they did not

see him driving.   Officer Nicoletti had a discussion on his dash camera video with other

officers to make sure they have enough evidence to support the element of “operating a

motor vehicle.”    Even though Pineda was reluctant to cooperate on the night of

Quintero’s arrest, she testified at trial and was able to identify Quintero. Pineda was

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subject to cross-examination by Quintero’s trial counsel who addressed many of the

discrepancies Quintero complains about regarding Pineda’s testimony.

       Additionally, Quintero testified in his own defense.    He relayed his version of the

events of that day:    that he was at the park drinking; he went to his car to “sober up”

before driving; and that he did not operate this vehicle after becoming intoxicated. The

jury makes the determination as to who to believe and find credible.     Brooks, 323 S.W.3d

at 899. Viewing the evidence in a light most favorable to the verdict, the jury believed

Pineda’s testimony. See Winfrey, 393 S.W.3d at 768.         It is the jury’s exclusive province

to decide which witness to believe and disbelieve.      See Wesbrook, 29 S.W.3d at 111.

As a result, we find the testimony of Pineda and additional evidence was sufficient to

support the jury’s verdict. We overrule Quintero’s first issue.

                      III.   ADMISSIBILITY OF BLOOD DRAW EVIDENCE

       By his second issue, Quintero asserts that because he revoked his implied consent

to the warrantless seizure of his blood and there were no exigent circumstances, the trial

court committed fundamental error in admitting the blood analysis results into evidence.

       A.     Preservation of Error

       “In order for a defendant to preserve his complaint for appellate review, he must

present to the trial court a timely objection, request, or motion stating the specific grounds

for the ruling he wishes.”   Lyssy v. State, 429 S.W.3d 37, 40 (Tex. App.—Houston [1st

Dist] 2014, no pet.) (citing TEX. R. APP. P. 33.1(a)).         “An appellant’s issue must

correspond with the objection he made at trial.”     Id.; see Broxton v. State, 909 S.W.2d

912, 918 (Tex. Crim App. 1995). “‘An objection stating one legal theory may not be used

to support a different legal theory on appeal.’”   Id. (citing Johnson v. State, 803 S.W.2d

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272, 292 (Tex. Crim. App. 1990)).           “This is true even if the alleged error implicates

constitutional guaranties.”     Id.   “‘The purpose of requiring a specific objection in the trial

court is twofold:    (1) to inform the trial judge of the basis of the objection and give him

the opportunity to rule on it [and] (2) to give opposing counsel the opportunity to respond

to the complaint.’” Id. (citing Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App.

2000)).     “Therefore, if a party fails to properly object to constitutional errors at trial, these

errors can be forfeited.”     Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);

Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).                   “Unless a litigant

exercises his option to exclude evidence it is to be admitted.”       Marin v. State, 851 S.W.2d

275, 278 (Tex. Crim. App. 1993) (en banc), overruled on other grounds, Cain v. State,

947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

       As a threshold matter, the State argues that Quintero did not preserve his right to

argue on appeal for the first time about the warrantless blood draw. See Wilson v. State,

311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) (“Preservation of error is a systemic

requirement on appeal.”). We agree.

       B.       Discussion

       In order to preserve error for our review, Quintero needed to object to the

admission of the evidence during trial or urge a motion to suppress either pre-trial or

during trial.   See Krause v. State, 243 S.W.3d 95, 102–03 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d) (holding that an oral motion to suppress can provide sufficient

notice to the trial court to preserve appellant’s complaint on appeal).            Here, Quintero

neither made an objection to the admission of the blood evidence at trial or in any pre-

trial motion to make the trial court aware of any issues he had regarding the blood

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evidence admissibility. As a result, we hold that Quintero’s issue is not preserved for our

review. See TEX. R. APP. P. 33.1(a); Wilson, 311 S.W.3d at 473–74. We overrule

Quintero’s second issue.

                                       IV.     CONCLUSION

       We affirm the trial court’s judgment.



                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
27th day of August, 2015.




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