             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00124-CR
     ___________________________

 TIMOTHY JOEL CARPENTER, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the County Court at Law
          Hood County, Texas
         Trial Court No. 51080


   Before Kerr, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                   I. Introduction

      Appellant Timothy Joel Carpenter appeals his conviction for misdemeanor

driving while intoxicated. The jury assessed his punishment as confinement in the

Hood County Jail for thirty days and recommended that the sentence be suspended.

The trial court followed the jury’s recommendation, suspended Appellant’s sentence,

and placed him on community supervision for a period of one year.

      Appellant challenges the sufficiency of the evidence to support the intoxication

element. Appellant attributes his inability to perform the field sobriety tests to a

physical disability and downplays the remaining evidence of intoxication. In essence,

Appellant tries to convince us that the jury got it wrong. The record, however,

contains probative evidence from which the jury could reasonably infer that Appellant

was intoxicated. Because this is the sole element that Appellant challenges, our

sufficiency review is limited to assuring that the record contains such evidence.

      We modify the caption on the judgment to delete any unnecessary confusion

that its wording may cause, and we affirm the judgment as modified.

                               II. Factual background

      The record in this case consists of the testimony of the DPS trooper who

stopped and arrested Appellant, one page of the report that the trooper prepared after

Appellant’s arrest, and a fifteen-minute video of the stop from the trooper’s body

camera.

                                           2
          The testifying officer had twenty-four years’ experience as a DPS trooper. He

had made 400 to 500 arrests for the offense of driving while intoxicated and had

conducted a similar number of investigations for the offense for which he made no

arrest.

          On a one-hundred-plus-degree June afternoon, the trooper noticed Appellant’s

vehicle approaching in his rearview mirror. A check of Appellant’s speed showed that

he was driving 20 miles per hour over the posted 40 mile-per-hour speed limit. The

trooper pulled to the side of the road, let Appellant pass, and then initiated a traffic

stop. Appellant immediately pulled over and remained cooperative and continued to

answer the questions that he was asked throughout his encounter with the trooper.

Appellant, a mechanic, claimed that he was speeding to remedy a mechanical problem

that was causing the vehicle to overheat.

          After the trooper approached Appellant’s vehicle, he noticed an open container

in the console. The container was a Four Loko alcoholic beverage. The label on the

24-ounce Four Loko container reflected that the beverage contained 12% alcohol—

while beer usually contains around 4.5% alcohol. The container was three-quarters

empty. The container was cold, which indicated to the trooper that Appellant had

recently purchased it.

          In the trooper’s words, Appellant said that “it was a drink that he had been

drinking on.” The video generated by the trooper’s body camera demonstrates that

when the trooper inquired about the container, Appellant said, “I was drinking that

                                             3
earlier.” Appellant stated that he had not even finished the container yet and that it

was all that he had consumed. He then stated that he “wasn’t going to even drink

that” but that he had become frustrated while attempting to diagnose the mechanical

problem with the vehicle he was driving.

       After hearing Appellant’s acknowledgement of his consumption of the Four

Loko, the trooper administered a horizontal gaze nystagmus (HGN) test. The trooper

described the basis for the test as follows:

       Nystagmus is a -- it’s referred to as an involuntary jerking of the eyeball,
       and horizontal is because we move -- it’s called a stimulus; you can use
       your finger or pen -- you move that side to side, and without nystagmus
       your eye will roll or move smoothly from one side to the next like a ball
       bearing on a track; it will move smoothly. The introduction of alcohol
       will create, and some other drugs, will create nystagmus, which causes a
       jerking movement as you’re moving the stimulus from side to side. The
       person who has nystagmus can’t see it, doesn’t even notice it, but it’s the
       eye not being able to focus on that stimulus or my finger as it moves side
       to side and it skips, it jerks back and forth, and again, this is created by
       the introduction of some drugs and alcohol into the system.

Without objection, the trooper testified that “when you see this nystagmus in the way

that we’re looking for [it,] it’s considered to be 88 percent accurate in determining

intoxication” of a level above .08 blood-alcohol content.

       The HGN test examines three indicators per eye, for a total of six clues of

intoxication. The trooper detected a total of four clues of intoxication but was unable

to detect the remaining two clues because Appellant failed to follow instructions. A

report the trooper generated mistakenly stated that Appellant had demonstrated six

clues. The trooper performed the HGN test twice during the fifteen-minute stop that

                                               4
preceded Appellant’s arrest. The second test produced the same result as the first.

According to the trooper, physical disabilities do not affect a person’s performance

during the HGN test. He also confirmed that a stroke would not affect a person’s

performance during the HGN test.

      The trooper also attempted to perform other field sobriety tests, such as the

one-leg-stand and walk-and-turn tests. Appellant did not properly perform these

tests, but the trooper discounted these results as clues of intoxication because

Appellant claimed that he had been burned, had back and leg problems, had arthritis,

and had suffered strokes. The trooper also did not mention in his report that

Appellant did not follow the instructions that he was given while taking these other

tests because the trooper did not know how much of the failure to follow the

instructions was related to Appellant’s “physical aspects” and how much was related

to alcohol.

      The trooper also performed two tests with a portable breath tester, the results

of which were not admissible. However, Appellant’s counsel asked the trooper

whether he took those tests into consideration in arresting Appellant, and the trooper

stated that he had. Appellant’s counsel spent a considerable amount of time during

cross-examination questioning the trooper on whether he had waited long enough

between the two portable breath tests for the second test to be valid and eventually

solicited an answer from the trooper that his experience indicated that the results of



                                          5
the second test were reliable even if the test was performed before the end of the

recommended fifteen- or twenty-minute waiting period.

        Appellant’s counsel also cross-examined the trooper regarding whether he had

administered other types of field sobriety tests. The trooper said that he did not

administer nonstandard tests and had not been trained on them because they did not

meet the National Highway Traffic Safety Administration’s standards.

        The trooper acknowledged that his report did not mention that Appellant had

glassy, bloodshot eyes. The report also did not mention anything about slurred

speech.

        Appellant agreed to take a breath test at the jail. However, there was a problem

with the machine used to perform the test. The trooper attempted to call a technical

supervisor for assistance but was unable to reach him. No results of tests conducted

at the jail were offered into evidence, and the trooper acknowledged that the evidence

of Appellant’s intoxication consisted solely of his observations on the side of the

road.

        The jury also heard, without objection, the State ask the trooper, “And so

based on all the evidence that we saw on the video[,] what was your belief at that

point?” The trooper responded, “I believed that he was intoxicated.”

        After hearing the above evidence, the jury found Appellant guilty of driving

while intoxicated. This appeal followed.



                                            6
           III. Sufficient evidence supports the intoxication element

      In his sole issue, Appellant argues that the evidence is insufficient to support

his conviction for driving while intoxicated. Specifically, Appellant argues that the

State did not prove the element of intoxication because the evidence of intoxication

consisted only of four clues on the HGN test.

      A. Standard of review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

      This standard gives full play to the factfinder’s responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman, 520 S.W.3d at 622.




                                          7
      B. The definition of intoxicated and the factors that are relevant to this
      appeal that are probative of intoxication

      “A person commits an offense if the person is intoxicated while operating a

motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a).1 The penal code

defines “intoxicated” as “(A) not having the normal use of mental or physical faculties

by reason of the introduction of alcohol . . . into the body; or (B) having an alcohol

concentration of 0.08 or more.” Id. § 49.01(2).

      The alternate definitions of intoxicated provide two methods of proving a

person is intoxicated—the impairment theory and the per se theory. Perez v. State, 495

S.W.3d 374, 382 (Tex. App.—Houston [14th Dist.] 2016, no pet.).              “The first

definition [subsection A] is often referred to as the ‘impairment’ theory of

intoxication, and the second definition [subsection B] is often referred to as the

‘per se’ theory of intoxication.” Ahn v. State, No. 02-17-00004-CR, 2017 WL 6047670,

at *4 (Tex. App.—Fort Worth Dec. 7, 2017, no pet.) (mem. op., not designated for

publication). They “are not distinct offenses, distinct elements of the offense, or even

alternative means of committing the offense, but are instead alternative means by

which the State may prove intoxication.” Id. In this case, the State offered no


      1
        Appellant describes the focus of his sufficiency challenge as follows: “Because
Appellant does not argue that he operated a vehicle in a public place, Appellant’s
discussion and argument will focus on the fact [that] the evidence was insufficient to
prove Appellant was intoxicated.” Based on the substance of Appellant’s arguments,
we construe this statement to mean that Appellant concedes that he was operating a
motor vehicle in a public place and therefore challenges only the sufficiency of the
evidence showing that he was intoxicated.

                                           8
credible evidence of Appellant’s blood-alcohol content; it relied solely on proof that

Appellant was impaired, and the jury was charged only on the impairment theory.

       In determining whether sufficient evidence supports a finding of intoxication,

appellate courts rely on a number of factors that are present in this case and do not

require the State to anticipate and rebut a claim that an impairment resulted from a

physical disability:

                       •     It is axiomatic that one factor that a jury may consider in

              determining whether a person was intoxicated is the consumption of

              alcohol. For example,

                       The jury heard that appellant admitted to having consumed
                       at least four beers on the night of the accident. Thus, there
                       is some proof that alcohol was introduced into appellant’s
                       body. The jury could have reasonably determined that the
                       accident occurred because appellant lost the normal use of
                       his faculties by reason of that introduction.

              Navarro v. State, 469 S.W.3d 687, 695 (Tex. App.—Houston [14th Dist.]

              2015, pet. ref’d) (op. on reh’g).

                       •     Generally, “an officer’s opinion testimony based upon

              experience and the observed facts that a defendant was intoxicated is

              sufficient to establish the element of intoxication.” Ramirez v. State,

              No. 02-09-00285-CR, 2010 WL 4676987, at *5 (Tex. App.—Fort Worth

              Nov. 18, 2010, no pet.) (mem op., not designated for publication) (citing

              Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979)).


                                              9
But as this court has previously noted, there must be supporting facts to

sustain the officer’s opinion. See id.

       •      “A defendant’s poor performance on the standardized field

sobriety tests is further evidence of intoxication.” Zill v. State, 355

S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also

McIntyre v. State, No. 02-17-00167-CR, 2018 WL 1866083, at *3 (Tex.

App.—Fort Worth Apr. 19, 2018, no pet.) (mem. op., not designated for

publication) (“A jury may also consider a defendant’s poor performance

on standardized field sobriety tests as evidence of intoxication.”); Finley

v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991,

pet. ref’d) (“Texas courts consistently uphold DWI convictions based

upon the opinion testimony of police officers who observed the

defendant’s unsatisfactory performance in field sobriety tests.”).

       There is no question that an HGN test is considered both reliable

and probative of intoxication. The court of criminal appeals has held

that the HGN test is based on scientific theory and is admissible under

Texas Rule of Evidence 702 when properly administered by a qualified

officer. See Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App. 1994);

Horton v. State, No. 02-09-00158-CR, 2010 WL 3433776, at *2–3 (Tex.

App.—Fort Worth Aug. 31, 2010, no pet.) (mem. op., not designated for

publication). One limitation on the use of HGN test results is that an

                              10
officer may not testify that an HGN test’s findings correlate to a specific

blood-alcohol content. See Youens v. State, 988 S.W.2d 404, 406 (Tex.

App.—Houston [1st Dist.] 1999, no pet.) (“In other words, an officer

trained in administering the HGN test may give his opinion that a

suspect is under the influence of alcohol[] but may not testify to that

suspect’s exact blood[-]alcohol content.”). In this case, Appellant does

not challenge the qualifications of the trooper to administer the HGN

test or the manner in which he administered it.

      •      Finally, it is not the State’s burden to establish what a

defendant’s normal capabilities are as a contrast to what it contends is an

impaired state:

      Appellant argues that the evidence is insufficient because
      the State failed to prove what appellant’s normal use of his
      mental and physical faculties were, and therefore, it did not
      prove that he had lost the normal use of his faculties.
      Appellant has not cited any authority in support of this
      proposition, nor are we aware of any. To the contrary,
      several courts of appeals, including this court, have
      addressed this issue and held that the State does not have
      to present evidence of a defendant’s normal abilities.

Ramirez v. State, No. 01-17-00568-CR, 2018 WL 3353052, at *3 (Tex.

App.—Houston [1st Dist.] July 10, 2018, no pet.) (citing Fogle v. State,

988 S.W.2d 891, 894 (Tex. App.—Fort Worth 1999, pet. ref’d); Reagan v.

State, 968 S.W.2d 571, 572 (Tex. App.—Texarkana 1998, pet ref’d);

Massie v. State, 744 S.W.2d 314, 316 (Tex. App.—Dallas 1988, pet. ref’d)).

                             11
      C.      The evidence supports the jury’s finding that Appellant was
              intoxicated

      The record in this case is not overwhelming. Apparently, due to an equipment

malfunction and the absence of a witness, the State lacked the scientific evidence

necessary to establish Appellant’s blood-alcohol content and thus to offer proof to

support a per se theory of intoxication. But that deficiency still left open the avenue

of proving intoxication under an impairment theory. The record before us contains

sufficient evidence to support a finding of intoxication under that theory.

      To begin with, Appellant admitted, and the open container in the vehicle

demonstrated, that he had recently consumed alcohol. Based on the alcohol content

of the drink, the amount consumed from the container, and the cool temperature of

the can, Appellant had recently consumed an amount of alcohol roughly equivalent to

four beers.    Thus, the record contains evidence of the recent and substantial

consumption of alcohol by Appellant.

      With this evidence before the jury, the question devolves into whether that

alcohol had produced an intoxicating effect on him.          The record contains that

evidence. For instance, Appellant began his encounter with the trooper by passing his

marked patrol vehicle going twenty miles per hour over the posted speed limit. A jury

could infer that this is evidence of a person “not having the normal use of mental or

physical faculties.” See Tex. Penal Code Ann. § 49.01(2).




                                           12
      The trooper’s testimony provides evidence of intoxication. Poor performance

on field sobriety tests in general, and the HGN test in particular, is probative of

intoxication. Here, the trooper conducted not one but two HGN tests on Appellant.

Appellant does not challenge the trooper’s competence or the manner in which he

administered the test. The lack of any challenges is understandable considering the

trooper’s decades of experience during which he had conducted almost one thousand

DWI investigations. The results of the HGN tests led the trooper to conclude that

Appellant was intoxicated. The only criticism raised to the HGN test results is that

the trooper noted in his report that he had found six clues of intoxication when he

had found only four. During his testimony, he quickly acknowledged his mistake and

indicated that the inability to determine the remaining clues resulted from Appellant’s

failure to follow the trooper’s instructions. See generally Murray v. State, 457 S.W.3d

446, 448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting

inferences, we presume that the factfinder resolved the conflicts in favor of the

verdict, and we defer to that determination.” (citing Hooper v. State, 214 S.W.3d 9, 12

(Tex. Crim. App. 2007))).

      Further, Appellant’s counsel’s cross-examination of the trooper provided

support that the record might not otherwise have had. Defense counsel specifically

asked the trooper if he had considered the results of the two portable breath tests that

he had administered. He said that he did. Though counsel’s purpose was apparently

to undermine the trooper’s reliance on the results of the tests because he had not

                                          13
waited long enough to administer the second test, the trooper’s rejoinder was an

explanation for why he felt that the second test was valid. Thus, even though the

portable breath tests did not provide Appellant’s blood-alcohol content for the jury to

consider, it did provide an additional basis for the trooper’s opinion that Appellant

was intoxicated.

      And the trooper’s opinion provides more support for the jury’s determination

of intoxication. The trooper did not give an invalid bare opinion. Instead, he relied

on the results of the tests that he had conducted—the HGN test and the portable

breath test—which were captured on his body camera and shown to the jury.

Further, Appellant’s counsel raised no objection when the trooper stated his opinion

that Appellant was intoxicated. Thus, it constitutes additional evidence supporting

the jury’s determination.

      D. Appellant’s argument turns a blind eye to the standard of review
      regarding whether the record contains evidence from which the jury
      could reasonably infer that he was intoxicated

      Appellant inventories a host of cases examining records in which the

defendants claimed that they suffered from a physical disability that accounted for

behavior that mimicked intoxication.2 In his argument, Appellant extracts factors

highlighted in those cases and notes the absence of those factors in his behavior.


      2
        See Williams v. State, 307 S.W.3d 862 (Tex. App.—Fort Worth 2010, no pet.);
Burkett v. State, 179 S.W.3d 18 (Tex. App.—San Antonio 2005, no pet.); Mitchell v.
State, 2004 WL 1277907 (Tex. App.—Fort Worth June 10, 2004, no pet.) (mem. op.,
not designated for publication); Fogle, 988 S.W.2d at 892, 894.

                                          14
Appellant appears to use this approach to frame an argument that the calculus in this

case dictates a finding that his disabilities, rather than his consumption of alcohol,

produced the behavior that the trooper attributed to intoxication. Appellant’s analysis

establishes that no two cases are the same but sidesteps the question of whether the

inference of intoxication drawn by the jury in this case was reasonable based on the

factors that were present.

        Some of the conclusions reached by Appellant are at odds with the record. For

example, Appellant emphasizes that there was no evidence of alcohol on his breath.

But there was no reason to infer that Appellant had recently drunk alcohol from its

scent on his breath because he admitted that he had recently consumed the Four

Loko.    Next, Appellant claims that he made no admission “indicating excessive

alcohol consumption” but then cites a case in which this court relied on evidence that

an appellant had consumed three or four beers. See Williams, 307 S.W.3d at 863. The

record in this case demonstrates the same amount of alcohol consumption by

Appellant. Then, Appellant claims that his driving did not “evince” intoxication. Yet

the record shows that Appellant passed a marked DPS vehicle going 20 miles per

hour over the posted 40 mile-per-hour speed limit. Appellant’s explanation is that his

speed was an attempt to remedy a mechanical problem with the vehicle, but a jury

could equally infer that Appellant’s conduct was reckless and was induced by alcohol

and that his failure to observe the law-enforcement vehicle that he was bearing down

on was induced by the same influence.

                                          15
       Appellant also characterizes the record as establishing that he had no unsteady

gait or slurred speech from alcohol consumption and that one explanation for his

failure to pass the one-leg-stand and walk-and-turn tests was his physical disabilities.

Appellant then states that the trooper “attributed Appellant’s inability to walk to

Appellant’s physical disabilities” and “testified Appellant’s inability to perform the two

tests was due to Appellant’s medical condition.” Instead, the trooper said that he did

not list the failure to pass the tests on his report because he did not know how much

of the failure to follow the instructions was related to Appellant’s “physical aspects”

and how much was related to alcohol. The jury, like the trooper, might have given

Appellant the benefit of the doubt because of his disability claims, but that does not

erase the other evidence in the record that supports a finding of intoxication.

       Appellant emphasizes that the courts in the cases he cites relied on evidence of

bloodshot eyes or a refusal to take a blood or breath test. There was no evidence of

those factors in this case, but that does not cancel out the evidence of intoxication

that does exist.

       Finally, Appellant notes that in certain cases, appellants claimed only at trial

that they suffered from a disability and did not mention the impairments when

arrested. Appellant claims he disclosed his disabilities to the trooper. He certainly

took the trooper’s lead when initially asked about whether he had a bad leg, and the

trooper gave him the benefit of the doubt for his inability to perform the field

sobriety tests requiring the use of his legs. But whatever support these facts lend to a

                                           16
conclusion that Appellant was not intoxicated does not abrogate the existence of

those facts indicating that he was.

      At bottom, Appellant’s argument is a variation of the theme that the State must

present proof of a defendant’s unimpaired state to establish that his impaired state

resulted from alcohol consumption. The State does not bear this burden. Nor was

the jury bound to accept Appellant’s theory of the case when the record contained

evidence supporting the State’s theory.

      Accordingly, we overrule Appellant’s sole issue.

                         IV. Modification of the judgment

      We do find one error in the trial court’s judgment. The judgment is captioned

“JUDGMENT ON VERDICT OF GUILTY PUNISHMENT FIXED BY

COURT.” The judgment recites, and the record establishes, that the jury assessed

Appellant’s punishment at thirty days in jail and recommended that the sentence be

suspended. To make the record speak clearly and to eliminate the possibility of

confusion, we modify the judgment by deleting the words following “guilty” so that

the judgment is captioned “JUDGMENT ON VERDICT OF GUILTY.” See Nelson

v. State, 149 S.W.3d 206, 213 (Tex. App.—Fort Worth 2004, no pet.) (stating that

appellate court may correct and reform a trial court judgment to make the judgment

congruent with the record).




                                          17
                                  V. Conclusion

      Having overruled Appellant’s sole issue but having modified the caption of the

judgment, the judgment of the trial court is affirmed as modified. See Tex. R. App. P.

43.2(b).

                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 8, 2019




                                         18
