      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00278-CR



                                Gerald John Conger, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
     NO. D-1-DC-06-204445, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The State charged appellant, Gerald John Conger, with felony driving while

intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp.

2007). Conger pleaded not guilty to the offense, stipulated to the prior convictions,1 and waived a

jury trial. After hearing the evidence and testimony, the trial judge found Conger guilty of second-

degree felony DWI and sentenced him to three years’ imprisonment.2 In his sole point of error,

Conger argues that the evidence is factually insufficient to support his conviction. In particular,

Conger claims that the evidence failed to show that he lacked control over his physical and mental



       1
         Conger had two prior DWI offenses, one occurring on July 31, 1987, and the other on
March 21, 2006. In 1994, he was also convicted of involuntary manslaughter resulting from another
DWI incident. See Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2007).
       2
         In this case, Judge Jon N. Wisser presided over the guilt/innocence and sentencing portions
of the trial, but the judgment was signed by Judge Baird, who took the bench following
Judge Wisser’s retirement.
faculties, that his blood-alcohol concentration was above the legal limit, or that the traffic offense

he committed, failing to signal when pulling out from a parked position, was indicative of

impairment. We affirm the judgment.


                                         BACKGROUND

               Around midnight on August 15, 2006, Austin Police Officers Thompson and Trujo

were patrolling the area of 12th and Chicon Streets. The officers observed a truck pull up to the curb

in the 1200 block of Chicon. A female, who Thompson recognized as a prostitute, approached the

vehicle and got in the passenger seat. After driving one block on Chicon Street, the vehicle again

pulled up to the curb, and the female got out of the truck. Thompson testified that he believed that

a drug transaction had just taken place in the vehicle, based on his experience as a police officer in

that area and his knowledge that prostitutes are often drug addicts and that they often deal drugs in

order to support their addictions.3 After the woman got out of the truck, the officers saw the truck

pull away from the curb without signaling and initiated a traffic stop.4

               Thompson stated that he approached the driver of the truck in order to issue a citation

and identified the driver as Conger. Concerned that Conger might be concealing narcotics on his



       3
         Thompson testified that this “particular intersection is probably the largest open-air drug
market in the City of Austin.” He further stated, when asked whether he had specific knowledge that
this woman had been involved in drug transactions before, “I haven’t met a prostitute that is not
addicted to crack cocaine. I have seen numerous prostitutes arrested for delivery of a
controlled substance.”
       4
          The transportation code provides that “an operator shall use the signal authorized by
Section 545.106 [hand, arm, or signal lamp] to indicate an intention to turn, change lanes, or start
from a parked position.” Tex. Transp. Code Ann. § 545.104(a) (West 1999). Conger does not
challenge the testimony that he was starting from a parked position on Chicon Street.

                                                  2
person, Thompson asked Conger to open his mouth so that he could check for drugs.5 In so doing,

Thompson noticed a strong odor of alcohol on Conger’s breath.

               Within a few minutes, Austin Police Officer Aspenleiter arrived on the scene as

backup. Thompson, who was nearing the end of his shift, told Aspenleiter that he suspected Conger

had been driving while intoxicated, and Aspenleiter took over the DWI investigation. Aspenleiter

observed at least two open containers through the window of Conger’s truck. Aspenleiter directed

Conger to the front of his patrol car for an interview and noticed that when Conger walked, “he had

a little sway to him; I could smell the odor of alcohol on his breath; his eyes were glassy and

bloodshot and watery; and when he talked, his speech was a little slurred.” Aspenleiter’s

observations led him to believe that Conger was a candidate for the standard field-sobriety tests.

               Conger performed the horizontal gaze nystagmus (HGN) and vertical nystagmus tests

but refused to do the walk-and-turn test and the one-leg stand test. Aspenleiter observed all six clues

of intoxication during Conger’s HGN test. Aspenleiter testified that, based on the totality of the

circumstances—his observations of Conger’s behavior, the result of the HGN test, the odor of

alcohol on Conger’s breath, and the open containers—he believed that Conger was impaired and did

not have the mental or physical faculties to safely operate a vehicle. Therefore, Aspenleiter placed

Conger under arrest and read him the standard DIC-24 statutory warning required for DWI arrests.

See Tex. Transp. Code Ann. § 724.015 (West Supp. 2007). Conger refused to submit to a breath test.



       5
          Thompson wanted “to make sure that he didn’t have anything – any narcotics concealed
in his mouth due to the fact that that’s 90 percent of the time is where somebody that has purchased
crack is keeping it nowadays.” Thompson testified that he had seen suspects swallow drugs in order
to avoid being charged with possession and that he wanted to prevent Conger from attempting to do
this because ingesting crack-cocaine is potentially lethal.

                                                  3
               At trial, Conger’s attorney cross-examined Aspenleiter regarding his investigation

tactics and suggested that Aspenleiter had been overly aggressive in an effort to intimidate Conger

into agreeing to perform the sobriety tests. Aspenleiter testified that Conger was not cooperative and

that he was trying to make Conger listen so that Conger would have “an opportunity to refuse at

every step of the way.” While Aspenleiter acknowledged that Conger was not a “fall-down” drunk,

he testified that in his opinion, Conger was impaired.

               In addition to the testimony of Thompson and Aspenleiter, the court admitted into

evidence a DVD recording of Conger’s detention and arrest, including Aspenleiter’s repeated

requests for Conger to pay attention while he explained the field-sobriety tests and Conger’s repeated

refusals to perform them. When asked whether he had had anything to drink, Conger admitted to

having about three beers since five o’clock that evening. The recording also indicates that Conger

was uncooperative and had to be asked several times before he would follow directions; Aspenleiter

repeatedly had to ask Conger to keep his hands by his side and stand with his feet together. When

Aspenleiter was performing the HGN test, during which Conger was asked to keep his head still and

not to speak, Conger continued talking, and his speech throughout the encounter was noticeably

slurred. In its closing argument, the State conceded that the arrest was perhaps not the “ideal

cop/citizen situation,” but argued that the evidence nonetheless showed that, under the totality of the

circumstances, Conger was guilty of driving while intoxicated. The trial judge found Conger guilty

of driving while intoxicated, and Conger appeals.


                                    STANDARD OF REVIEW

               In his sole point of error, Conger claims the evidence was factually insufficient to

support his conviction. We begin a factual-sufficiency review with the presumption that the

                                                  4
evidence supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134

(Tex. Crim. App. 1996). We view all of the evidence in a neutral light and will reverse only if the

evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and

manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed

by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and

manifestly unjust.    Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006);

Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 10-11

(Tex. Crim. App. 2000). An appellate court must be appropriately deferential to the verdict, in order

to avoid substituting its own judgment for that of the fact-finder. Vasquez, 67 S.W.3d at 236. Our

evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility

accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The

weight to be given contradictory testimonial evidence is within the sole province of the fact-finder

because it turns on an evaluation of credibility and demeanor. Id. at 407-09. In a bench trial, the

trial judge is the sole fact-finder, and his credibility and weight determinations are entitled to the

same deference as that given to a jury’s determinations. See Williams v. State, 692 S.W.2d 671, 676

(Tex. Crim. App. 1984).


                                          DISCUSSION

               Under the penal code, 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 (West 2003). Intoxication 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.” Id.



                                                  5
§ 49.01(2)(A), (B). Intoxication may be proved under either the impairment or the per se definition.

See State v. Mechler, 153 S.W.3d 435, 437 (Tex. Crim. App. 2005).

                 In challenging the factual sufficiency of the evidence, Conger claims that the State

failed to prove that he lacked control of his physical and mental faculties at the time he was pulled

over on a “pretext” traffic stop for a possible drug offense. As the State correctly points out, the

officer’s subjective intent or “pretext” does not make an otherwise legal stop unlawful. See

State v. Gray, 158 S.W.3d 465, 469-70 (Tex. Crim. App. 2005) (officer entitled to search driver’s

person and passenger compartment of vehicle after making valid arrest for offense of turning without

signaling, despite fact that officer “may have had another subjective motive” for initiating detention);

see also Castro v. State, 227 S.W.3d 737, 739, 742 (Tex. Crim. App. 2007) (failure to signal is valid

basis for traffic stop and subsequent search for narcotics). While Thompson initially believed that

a drug transaction had taken place, prompting him to search inside Conger’s mouth for hidden drugs,

there was nothing unlawful in stopping Conger for failure to use his turn signal in violation of the

transportation code.

                 As evidence that Conger’s physical and mental faculties were impaired at the time

of the stop, Thompson and Aspenleiter both testified that Conger had a strong odor of alcohol on his

breath. In addition, Aspenleiter saw multiple open alcoholic beverage containers inside Conger’s

vehicle. Aspenleiter testified that when he had Conger walk over to his vehicle in order to perform

the sobriety test, Conger “had a little sway to his walk.” Aspenleiter further testified that Conger’s

eyes were bloodshot and that his speech was slightly slurred. According to Aspenleiter, Conger

failed the HGN test by showing six out of six indicators for intoxication and refused to submit

a breath test.

                                                   6
                The uncorroborated testimony of an experienced arresting officer is sufficient to prove

the element of intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979);

Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref’d). The record shows that

Aspenleiter was an experienced officer: he had been in law enforcement for approximately five

years, had received specific training relating to DWI arrests, and had investigated “a little over 200”

DWIs. Based on his experience and observations, he concluded that Conger was intoxicated.

                Furthermore, Conger’s refusal to submit to a breath or blood test is an additional

factor that the fact-finder may consider in determining whether he was intoxicated at the time of the

alleged offense. See Tex. Transp. Code Ann. § 724.061 (West 2003); Griffith v. State, 55 S.W.3d

598, 601 (Tex. Crim. App. 2001) (refusal to take blood-alcohol test was relevant as evidence of

intoxication); Gaddis v. State, 753 S.W.2d 396, 399 (Tex. Crim. App. 1988) (intoxication is

legitimate deduction from defendant’s refusal to take breath test). Based on this refusal and the

officers’ testimony regarding Conger’s appearance and behavior at the time of the stop, we conclude

that the evidence of Conger’s impairment is not so weak as to render the conviction clearly wrong

and manifestly unjust.

                Nor do we think that the evidence in support of the verdict is greatly outweighed by

contrary evidence showing that Conger was not intoxicated. See Watson, 204 S.W.3d at 414-15.

Under a factual-sufficiency review, we do not view each piece of evidence in isolation. Rather, we

must view all the evidence, both for and against the finding of guilt, in a neutral light. Sims v. State,

99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The evidence Conger cites as weighing in his favor

includes (1) the videotape, which shows that he was not a “fall-down” drunk; (2) the lack of blood


                                                   7
or breath test results indicating intoxication; and (3) the lack of erratic driving or any type of driving

which indicated intoxication.

                We agree that the videotape shows that Conger was able to stand, but it also

corroborates Aspenleiter’s testimony that Conger walked with “a slight sway” and spoke with slurred

speech. Regardless, the fact that the videotape shows that Conger was not completely impaired to

the point that he was unable to stand does not greatly outweigh other evidence that Conger was

intoxicated, such as the testimony that his breath smelled strongly of alcohol and that he failed the

HGN test by exhibiting all six clues of intoxication.

                With respect to the lack of blood or breath test evidence, Conger asserts that there was

no evidence showing that his blood-alcohol level was over the legal limit, and that therefore the

evidence is insufficient to establish his guilt. Implicit in this argument is the suggestion that the

State was required to submit evidence that Conger’s blood-alcohol concentration was .08 or greater,

despite the fact that Conger refused to provide a breath specimen.6 However, in this case, Conger

was not charged with DWI on the theory that his blood-alcohol level was over the legal limit under

the per se standard of intoxication contained in the penal code. See Tex. Penal Code Ann.

§ 49.01(2)(B). Rather, he was indicted, charged, and convicted of DWI under the impairment

definition, requiring that the State prove beyond a reasonable doubt that Conger did not have the

normal use of his mental or physical faculties by reason of the introduction of alcohol. Id.

§ 49.01(2)(A). Conger is therefore incorrect to argue that the State was required to show that


        6
         As noted above, refusal is a factor the fact-finder is permitted to consider in determining
whether a person may have been intoxicated at the time of the alleged offense. See Tex. Transp.
Code Ann. § 724.061 (West 2003); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001);
Gaddis v. State, 753 S.W.2d 396, 399 (Tex. Crim. App. 1988).

                                                    8
Conger’s blood-alcohol level was above .08 when he was instead charged under the

impairment definition.

               Finally, Conger argues that there was no evidence suggesting that the traffic offense

he committed was indicative of his impairment. There is no requirement that the officer must

observe signs of intoxication while Conger was driving his vehicle. The traffic offense that serves

as a predicate for the initial detention need not show impairment in order for Conger to be arrested

and convicted of DWI. Here, Aspenleiter concluded that Conger was intoxicated based on his

appearance and conduct immediately after being stopped for his failure to signal. The officers’

observations of Conger after Conger exited the vehicle are sufficient to support a determination of

intoxication. See Rodriguez v. State, 31 S.W.3d 359, 361 (Tex. App.—San Antonio 2000, pet. ref’d)

(holding that investigating officer’s testimony that he thought appellant was intoxicated based

entirely on conduct after appellant exited vehicle, rather than how appellant drove vehicle, was

factually sufficient to support DWI conviction).

               The State’s allegation that Conger’s mental and physical faculties were impaired was

based on evidence that Conger’s breath had a strong odor of alcoholic beverage, that he failed the

HGN test, that his speech was slightly slurred and his eyes were watery, and that he refused to submit

a breath specimen. The evidence presented in this case to support a determination that Conger was

driving while intoxicated is not so obviously weak as to render the conviction clearly wrong or

unjust. Although the trial court observed that it was a “close case,” we hold that there was sufficient

evidence to determine that Conger was driving while intoxicated.7


       7
         In assessing Conger’s punishment, the trial court noted that while Conger was indeed guilty
of driving while intoxicated, “the evidence wasn’t as strong as [he] would have liked for [him] to
impose a sentence of the magnitude that the State desires.”

                                                   9
              We overrule Conger’s point of error and affirm the judgment of conviction.


                                        CONCLUSION

              Because the evidence is factually sufficient to support the trial court’s judgment, we

affirm the judgment of conviction.



                                             ___________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: August 1, 2008

Do Not Publish




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