                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                   NO. 2-08-336-CR


SHANNON W ILLIAMS                                                           APPELLANT

                                            V.

THE STATE OF TEXAS                                                                 STATE

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

       FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

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


                                       OPINION

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

                                    I. INTRODUCTION

       A jury found Appellant Shannon W illiams guilty of driving while intoxicated

(DW I), and the trial court assessed his punishment at sixty days in jail, probated for

eighteen months, and a $750 fine.         In two points, W illiams contends that the

evidence is factually insufficient to sustain his conviction and that the trial court erred

by including the per se theory of intoxication in the jury charge. W e will affirm.
                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      One night at approximately 1:18 a.m., Officer Nicholas Brown of the Fort

W orth Police Department saw W illiams’s vehicle run a red light and change lanes

without signaling. Officer Brown activated his overhead lights and stopped Williams.

Officer Brown noticed that W illiams had a “heavy odor of alcohol about him,”

bloodshot eyes, and slurred speech. Officer Brown asked W illiams if he had been

drinking, and W illiams said he had consumed three or four beers that night.

      Officer Brown called for a DW I Unit 1 and spoke with Officer Dena Evans, a

DW I investigator who asked Officer Brown to begin field sobriety tests until she

arrived. Officer Brown administered the horizontal gaze nystagmus test on W illiams

and, based on W illiams’s performance, concluded that W illiams had alcohol in his

system. W hen Officer Brown asked W illiams to perform the walk and turn test,

W illiams refused and “just turned around, put his hands behind his back[,] and said,

‘I’m not doing anything else.’” Officer Brown arrested W illiams.

      Officer Evans arrived at 1:36 a.m. and put W illiams in her patrol car. She

smelled an odor of alcohol on him. W hile en route to the jail, W illiams lay down in

the backseat of the patrol car. Officer Evans testified that “[W illiams] was definitely




      1
          Officer Brown explained that the Fort W orth Police Department’s DW I Unit
handles only DW Is and that, although he is qualified to investigate DW Is, the DW I
Unit can process them in “half the time we can, just all the paperwork, being familiar
with it.”

                                           2
passed out.” W hen they arrived at the jail, W illiams told Officer Evans that he was

going to throw up and to hurry and let him out. W illiams threw up in the sally port.

      Officer Evans took W illiams to the intoxilyzer room, where she had him

perform the one-leg stand and walk-and-turn tests. Officer Evans testified that

W illiams was slow to respond to her instructions during the field sobriety tests.

W illiams swayed during the one-leg stand test. He could not keep his balance while

listening to directions and while performing the walk-and-turn test, and he had to

reach for the wall for support at one point.

      W illiams took the intoxilyzer test at approximately 2:46 a.m. and 2:48 a.m.,

about ninety minutes after Officer Brown had stopped him; the results of both tests

showed that his alcohol concentration was 0.097 at that time.

      W illiams was charged by information with DW I “by not having the normal use

of his mental or physical faculties by reason of the introduction of alcohol into his

body or by having an alcohol concentration of at least 0.08.” 2 At trial, Officer Brown,

Officer Evans, and the senior forensic chemist for the Tarrant County Medical

Examiner’s office testified for the State. The State played two videotapes for the

jury. State’s Exhibit 1 is a videotape of the beginning of Officer Brown’s stop of




      2
        The penal code defines “intoxicated” as “not having the normal use of
mental or physical faculties by reason of the introduction of alcohol . . . into the body”
(the impairment definition) or “having an alcohol concentration of 0.08 or more” (the
per se definition). Tex. Penal Code Ann. § 49.01(2) (Vernon 2003).

                                            3
W illiams.3 State’s Exhibit 3 is a videotape of the inside of Officer Evans’s car while

she transported W illiams to the jail and of W illiams performing the field sobriety tests

inside the intoxilyzer room. The State also introduced the results of W illiams’s

intoxilyzer tests.

       After both sides rested, W illiams objected to the inclusion of the per se theory

of intoxication in the jury charge, claiming that the State had failed to present any

evidence that his alcohol concentration was 0.08 or more “at the time Mr. Williams

was driving.” [Emphasis added.] The trial court overruled his objection and charged

the jury on both the impairment and per se theories of intoxication. The jury entered

a general verdict of “guilty” without specifying which definition of intoxication it found

applied to W illiams.

                        III. F ACTUAL S UFFICIENCY OF THE E VIDENCE

       In his second point, W illiams argues that factually insufficient evidence existed

that he was intoxicated under either of the two statutory definitions of intoxication.

Specifically, W illiams contends that “the State enjoyed a lower standard when

attempting to prove the [impairment] definition of intoxication because the jury was

allowed to consider convicting on insufficient evidence” and that factually insufficient

evidence existed that his alcohol concentration was 0.08 or more for the per se

definition of intoxication.



       3
        Officer Brown explained at trial that the remainder of the stop was not
recorded because the videotape ran out of tape.

                                            4
                              A. Standard of Review

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Neal v. State, 256

S.W .3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009);

Watson v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006). W e then ask

whether the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the evidence

supporting the conviction that the factfinder’s determination is manifestly unjust.

Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008); Watson, 204 S.W .3d

at 414–15, 417. 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 overturn [the]

conviction.” Id. W e 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. W e may not

simply substitute our judgment for the factfinder’s. Johnson v. State, 23 S.W .3d 1,


                                          5
12 (Tex. Crim. App. 2000); 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, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the weight

and credibility of the evidence.” Id. at 9. Our deference in this regard safeguards

the defendant’s right to a trial by jury. Lancon, 253 S.W .3d at 704. 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).        The existence of an alternative

reasonable hypothesis may be relevant to, but is not determinative in, a factual

review. Wilson v. State, 7 S.W .3d 136, 141 (Tex. Crim. App. 1999).

                        B. Factually Sufficient Evidence

      The impairment and per se theories of intoxication do not involve separate

violations of the law. Bagheri v. State, 119 S.W .3d 755, 762 (Tex. Crim. App. 2003).

Instead, they set forth “alternate means by which the State may prove intoxication,

rather than alternate means of committing the offense.” Id. W hen a trial court

submits alternate means by which the State may prove intoxication, the evidence is


                                          6
sufficient to support a general verdict of “guilty” if it is sufficient to prove any one of

the alleged means. Id. at 762 n.5; Reardon v. State, 695 S.W .2d 331, 334 (Tex.

App.—Houston [1st Dist.] 1985, no pet.). Consequently, in a factual sufficiency

review, factually sufficient evidence of either theory of intoxication will support the

jury’s finding of guilt. See Bagheri, 119 S.W .3d at 762 n.5.

       Here, because the jury could convict W illiams if it found that he was driving

while intoxicated under either the impairment or per se definition of “intoxicated” and

because the jury entered a general verdict of “guilty,” factually sufficient evidence of

either theory will support the jury’s finding.      See id.   egarding the impairment

definition of “intoxicated,” the evidence at trial demonstrated that W illiams ran a red

light and changed lanes several times without signaling. Officer Brown testified that

W illiams smelled of alcohol; that he had red, bloodshot eyes; and that he slurred his

speech. The officer said that W illiams had told him that he had consumed alcohol

that evening. The officer also explained that W illiams had failed the horizontal gaze

nystagmus test, showing that he in fact had alcohol in his system. Officer Brown

further testified that W illiams had to lean against his vehicle for balance when talking

to Officer Brown.

       Officer Evans also smelled alcohol on W illiams. She testified that W illiams

passed out on the way to the jail, and the videotape of Officer Evans’s car shows




                                            7
that W illiams lay down in the back of the officer’s car during the ride to the jail. 4

W illiams vomited when they arrived at the jail, and Officer Evans testified that his

vomit smelled like alcohol. Officer Evans explained that during the field sobriety

tests in the intoxilyzer room, W illiams swayed and could not keep his balance. At

one point, W illiams had to grab the wall behind him to keep his balance while

listening to the officer’s instructions. 5

       W illiams appears to argue that the State had a lower standard of proof

regarding the impairment theory of intoxication because the jury could consider the

results of W illiams’s intoxilyzer tests. The intoxilyzer results showing that W illiams’s

alcohol concentration was 0.097 ninety minutes after his arrest, however, provided

further evidence that W illiams had consumed alcohol that night and were relevant

to both theories of intoxication. See State v. Mechler, 153 S.W .3d 435, 440 (Tex.

Crim. App. 2005) (noting that results of intoxilyzer tests are probative of both per se

and impairment theories of intoxication because they indicate whether defendant

had consumed alcohol); Stewart v. State, 129 S.W .3d 93, 96 (Tex. Crim. App. 2004)


       4
         The dissent contends that the videotape is contrary to Officer Evans’s
testimony and shows that Williams was not passed out. The videotape shows that
Officer Evans left the scene for the jail at approximately 2:05 a.m. and that W illiams
lay down in the backseat at that time. He did not talk again or sit up until they arrived
at the jail at 2:17 a.m., at which time he asked the officer to stop so that he could
throw up. Thus, the videotape does not contradict Officer Evans’s testimony that
W illiams was passed out.
       5
        The dissent also asserts that the videotape contradicts Officer Evans’s
testimony about W illiams’s behavior in the intoxilyzer room. W e find no contradiction
between Officer Evans’s testimony and the videotape.

                                             8
(same); see also Maxwell v. State, 253 S.W .3d 309, 316–17 (Tex. App.—Fort W orth

2008, pet. ref’d) (holding, in sufficiency analysis, that absence of extrapolation

evidence was irrelevant to jury’s finding of guilt because jury was charged on both

theories of intoxication).

      W illiams testified at trial and offered another explanation for some of his

actions that night. He explained that he had eaten some sushi at a party, had felt

sick, and had run the red light on purpose so that he could get home to throw up. 6

He also explained that he had changed lanes without using a blinker because he

saw Officer Brown’s car, thought the officer was in a hurry, and wanted to get out of

his way. Although the jury could have found W illiams’s testimony to be true, the

mere existence of a reasonable alternative hypothesis for his running a red light,

changing lanes without signaling, and throwing up does not render the evidence

factually insufficient. See Wilson, 7 S.W .3d at 141; Love v. State, 199 S.W .3d 447,

454 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).




      6
          The dissent takes issue with the fact that the video recording of the stop
began after W illiams ran the red light, stopped before W illiams got out of his car, and
did not include audio. No evidence in the record suggests that the videotape was
not full or that Officer Brown intentionally turned off the videotape before getting out
of his car. Instead, Officer Brown testified that the video “[j]ust ran out of tape” and
that he did not realize it until he “took it out and placed it into property.” He also
testified that he did not recall if his patrol car that night was equipped with a
microphone but that if it had one, he would have been wearing it. Any suspect
motive on the part of the police to which the dissent alludes is not supported by the
record and is not an issue raised in this appeal. See Tex. R. App. P. 47.1.

                                           9
      W e have reviewed the evidence in a neutral light and have given due

deference to the jury’s determinations, particularly those regarding the witnesses’

demeanor and credibility. W e find no objective basis in the record to hold that the

jury’s verdict was clearly wrong or manifestly unjust or that it was contradicted by the

great weight and preponderance of the evidence. See Lancon, 253 S.W .3d at 704;

Watson, 204 S.W .3d at 414–15, 417. Rather, the evidence presented at trial was

sufficient to support the verdict, and no contrary evidence exists that would render

the evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W .3d at 704; Watson, 204 S.W .3d at 414–15, 417. Accordingly, we

hold that the evidence is factually sufficient to support W illiams’s conviction. 7 W e

overrule his second point.




      7
         The dissent claims that the evidence is factually insufficient to show that
W illiams was intoxicated at the time he was driving, but the evidence demonstrates
that W illiams ran a red light (a fact that he admitted at trial), admitted drinking
alcohol that night (also a fact that he admitted at trial), lay down in the backseat of
the patrol car (again, an admitted fact), vomited upon arrival at the jail (yet again, an
admitted fact), and failed field sobriety tests and the intoxilyzer test. Viewing the
evidence in a neutral light, favoring neither party, this evidence is certainly not “so
weak that the factfinder’s determination is clearly wrong or manifestly unjust.” See
Lancon, 253 S.W .3d at 704.

                                           10
                                     IV. J URY C HARGE

         In his first point, W illiams contends that the trial court erred by including the

per se theory of intoxication in its charge to the jury because the State presented

insufficient evidence to show what his alcohol concentration was at the time he was

driving.

         Appellate review of error in a jury charge involves a two-step process. Abdnor

v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994). Initially, we must determine

whether error occurred. See id. at 731–32. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id.

         The jury charge must distinctly set forth the law applicable to the case. See

Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). The trial court errs when it

charges the jury on a theory of conviction that is not supported by the evidence.

Sanders v. State, 814 S.W .2d 784, 787 (Tex. App.—Houston [1st Dist.] 1991, no

pet.).

         Here, as we explained in our factual sufficiency review above, the results of

intoxilyzer tests are relevant to both theories of intoxication because they may show

that a defendant has consumed alcohol and thus “tend to make it more probable that

[the defendant] was intoxicated at the time of driving.” Mechler, 153 S.W .3d at 440;

see Stewart, 129 S.W .3d at 96. The court of criminal appeals recently explained,

         BAC-test results, even absent expert retrograde extrapolation
         testimony, are often highly probative to prove both per se and



                                             11
      impairment intoxication.[8] However, a BAC-test result, by itself, is not
      sufficient to prove intoxication at the time of driving. There must be
      other evidence in the record that would support an inference that the
      defendant was intoxicated at the time of driving as well as at the time
      of taking the test. . . . Other evidence that would logically raise an
      inference that the defendant was intoxicated at the time of driving as
      well as at the time of the BAC test includes, inter alia, erratic driving,
      post-driving behavior such as stumbling, swaying, slurring or mumbling
      words, inability to perform field sobriety tests or follow directions,
      bloodshot eyes, any admissions by the defendant concerning what,
      when, and how much he had been drinking—in short, any and all of the
      usual indicia of intoxication.

             In sum, the evidence is sufficient to support a jury charge on the
      “per se” theory of intoxication if it includes either (1) expert testimony of
      retrograde extrapolation, or (2) other evidence of intoxication that would
      support an inference that the defendant was intoxicated at the time of
      driving as well as at the time of taking the test.

Kirsch v. State, No. PD-0379-09, 2010 W L 447437, at *4–5 (Tex. Crim. App. Feb.

10, 2010). 9

      Here, the jury heard evidence that W illiams ran a red light and changed lanes

without signaling; smelled of alcohol; had red, bloodshot eyes; slurred his speech;

leaned on his vehicle for balance; and said he had consumed alcohol that evening.

The jury also heard evidence that W illiams passed out on the way to the jail, vomited

upon arrival, and failed field sobriety tests. Following Kirsch, we hold that this

evidence “support[s] an inference that [W illiams] was intoxicated at the time of


      8
         “Extrapolation evidence explains the correlation between the breath test
results and the level of intoxication at the time of the arrest in a given case.” Martin
v. Dep’t of Pub. Safety, 964 S.W .2d 772, 776 (Tex. App.—Austin 1998, no pet.).
      9
          The court of criminal appeals issued its opinion in Kirsch after W illiams
filed this appeal.

                                          12
driving as well as at the time of taking the breath test.” Id. Consequently, the

intoxilyzer results, when coupled with the other evidence at trial, were sufficient to

support a jury charge on the “per se” theory of intoxication. See id. W e overrule

W illiams’s first point.

                                    V. C ONCLUSION

       Having overruled both of W illiams’s points, we affirm the trial court’s judgment.



                                                      SUE W ALKER
                                                      JUSTICE

PANEL: DAUPHINOT, W ALKER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: March 4, 2010




                                           13
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                 NO. 2-08-336-CR


SHANNON W ILLIAMS                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE

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

      FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

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

                           DISSENTING OPINION

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

      I write separately because I do not understand the record in the same way the

majority understands it, and I find that record terribly disturbing.    The majority

accurately reports and relies on the testimony at the trial, but the testimony is

contradicted by the video record of the actual events.

      Patrol Officer Nicholas Brown pulled Appellant Shannon W illiams over and

then called for the officer who was trained to investigate suspected offenses of

driving while intoxicated (DW I), even though he was trained to conduct the horizontal
gaze nystagmus (HGN) test. Officer Brown’s car either had no microphone or had

the microphone turned off. He testified,

      Q.       Now, officers do have mikes [sic], don’t they?

      A.       Some of the vehicles are equiped [sic] with them, some
               aren’t.

      Q.       And this vehicle is not equiped [sic] with a mike [sic]?

      A.       I believe not. I don’t recall. If it did have one, I would have been
               wearing it.

      Q.       So if there was a mike [sic], we could have heard his voice,
               correct?

      A.       Yes, sir.” 1

      Officer Brown testified that there was a video camera, but he “ran out of tape”

before the film could capture Appellant’s ability to walk and to exhibit whether he had

lost the normal use of his mental or physical faculties at the time he was operating

the motor vehicle. Officer D. Evans, the second officer, believed that she had turned

her car’s microphone off. She was mistaken. The regularity with which the units

working the Camp Bowie area have no dash cameras or have malfunctioning

equipment or officers who cannot remember whether they did not have the

equipment or simply chose not to use it is, indeed, disturbing.

      Officer Brown of the Fort W orth Police Department was on duty in

approximately the 9100 block of Camp Bowie Boulevard at approximately 1:18 a.m.

on October 19, 2007. He testified that he saw a blue pickup driven by Appellant and



      1
           RR Vol.II at 29–30.

                                            2
traveling west on Camp Bowie run a red light at the intersection of Camp Bowie and

Normandale. Officer Brown pulled his patrol vehicle behind the pickup and began

to follow it. He said that he saw Appellant change lanes twice without signaling.

Officer Brown then activated his dash camera. The video shows the blue pickup pull

on to the access road of Loop 820 and then pull over to the side of the road without

incident.   Officer Brown testified that he smelled the odor of alcohol and that

Appellant had bloodshot eyes and slurred speech. Although there is no sound on

the videotape, Officer Brown testified that in response to his questions, Appellant

said that he had consumed three or four beers. Officer Brown testified that he had

asked Appellant for his driver’s license and insurance and that Appellant had no

problem providing the driver’s license.       Officer Brown had no independent

recollection of Appellant’s providing the insurance information.

      Officer Brown called for a DW I unit and spoke with Officer Evans, who told him

that she was some distance away and asked him to go ahead and perform the field

sobriety tests. At some point, while Officer Brown was in his unit and Appellant was

still in his pickup, the video recording in Officer Brown’s car stopped.

      Officer Brown denied that Appellant had any particular problem getting out of

the pickup or that he had to hold on to the pickup to maintain his balance. He did

claim that Appellant at some point was forced to lean against the pickup to maintain

his balance. Again, these actions are not reflected on the videotape because it had

already stopped. According to his testimony, Officer Brown administered the HGN


                                          2
test, concluding that Appellant had alcohol in his system and scored six “clues” of

intoxication. Officer Brown testified that at that point, Appellant said that he was not

going to perform any further tests and put his hands behind his back to be

handcuffed.

      Appellant testified that he had been at a birthday party for a short time,

approximately two hours, and had eaten some sushi that had made him sick. He

testified that he told Officer Brown that he was feeling sick and could not continue

the field sobriety tests. Of course, because the video equipment in Officer Brown’s

car had stopped, the evidence at this point was a swearing match. Appellant also

testified that as he was driving west on Camp Bowie, Officer Brown pulled out of a

parking lot and followed very closely behind him. Assuming that Officer Brown

wanted to pass him, Appellant pulled over into a different lane. W hen Officer Brown

did not make an attempt to pass him, Appellant pulled back into his lane in

preparation for entering the access road for Loop 820 because he was intending to

return home by way of the loop. The videotape does reveal that Appellant did not

signal any lane changes.      There were no vehicles around, other than Officer

Brown’s, and there was no testimony or other evidence that Appellant could not

change lanes safely without signaling.

      Officer Brown testified that he had pulled Appellant over because of his

running a red light and his erratic driving. Appellant admitted that he ran a red light,

and he does not challenge the original stop. But the limited amount of driving


                                           3
recorded on the videotape is neither erratic nor unsafe and in no way indicative of

intoxication.

      Officer Evans testified that she arrived at the scene of the traffic stop at 1:36

a.m. She took custody of Appellant and placed him in the back of her patrol car.

Officer Evans testified that she smelled the odor of alcohol on Appellant, that his

eyes were bloodshot, and that his speech was slurred. She also testified that he

passed out in the back seat of her vehicle. She further testified that the microphone

in her car was not on.

      I have closely reviewed the videotape from Officer Evans’s car and find that,

indeed, the microphone was turned on. One can hear Appellant speaking. His

speech is not slurred. Indeed, his speech is clear, cogent, and coherent. He asks

the officers to retrieve his billfold from his truck. He explains that he owns his own

business and needs the billfold. He describes the billfold as being brown and

looking like a large checkbook and tells the officers how much he appreciates their

getting it for him. He asks what is going to happen to him and explains that he has

never been in any kind of trouble before. He tells the officers that his handcuffs are

too tight and are making his hands numb. He asks if they will cuff his hands in front.

They, of course, refuse. W e see him lie down on the back seat, but he has not

passed out. Indeed, he continues to speak. He asks what is going to happen to him

and what the next procedures will be. He asks if he can get someone to come get

it, presumably his truck in the context of the events. After a short time, he thanks


                                          4
Officer Evans for turning on the air for him. There is a period of silence while

someone drives the patrol car. Officer Evans does not speak to Appellant, and he

neither speaks nor sings to her. There is no sound of snoring, and Appellant is not

visible. Neither Officer Evans nor the majority suggests that she has passed out

because she does not speak and is not visible on the tape.

      As the car pulls into the sally port, Appellant says that he feels very sick and

asks the officer to stop because he feels that he is going to vomit. His speech is not

slurred, nor does he sound inebriated. He then asks the officer to please let him out

of the car because he feels that he is going to vomit. Nowhere is Officer Evans’s

testimony that Appellant passed out or that his speech was slurred supported by

what we see or hear on the videotape. In fact, her testimony is contradicted by what

we see and hear.

      W hen Officer Evans pulled into the sally port at the jail, she opened the car’s

back door for Appellant, and he was allowed to vomit outside the police car. Nothing

in the record suggests that Appellant was given anything to drink or anything with

which to rinse the vomit out of his mouth before he submitted to the intoxilyzer test.

      Officer Evans took Appellant inside the jail to the intoxilyzer room. The events

in the intoxilyzer room were videotaped. Again, the difference between the officer’s

description of Appellant’s performance on the field sobriety tests and the

performance revealed on the videotape suggests that we are talking about totally

different cases. At trial, Officer Evans described Appellant as unable to stand


                                          5
without swaying or holding on to the wall and unable to properly perform the field

sobriety tests. The videotape reveals that Appellant swayed less than the officer and

that Appellant performed substantially better than she did on the field sobriety tests.

      At trial, Officer Evans stated that Appellant was unable to maintain a stance

with one foot in front of the other, but the videotape shows that she took an

inordinately long time explaining the test, repeating herself, while instructing him to

stand in a very unnatural position that he eventually abandoned while he waited for

her again to repeat the instructions. W hen Appellant did perform the test, he

performed quite well. The video also demonstrates that his speech is not slurred,

although he does appear quite tired.

      Officer Evans testified that Appellant had a slow response to instructions,

justifying her conclusions that he had lost the normal use of his mental faculties.

The video shows that every time he attempted to respond to her instructions, she

told him to wait because she was not finished instructing him. Appellant did tell

Officer Evans that he felt claustrophobic. Officer Evans opened the door to the

intoxilyzer room.

      Appellant agreed to take a breath test, and the test revealed a blood alcohol

concentration of 0.097 at 2:46 a.m., approximately ninety minutes after Appellant

was pulled over. Appellant was ultimately charged with DW I by not having the

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

into his body or by having an alcohol concentration of at least 0.08.


                                          6
      The majority relies on the officers’ testimony to the exclusion of the

contradictory evidence of the video record. W hile determinations of credibility are

the exclusive province of the trier of fact, 2 an objective record of the actual events

that contradicts the testimony must mean that the record does not support the trial

court’s determination of facts.

      Repeatedly, we are asked to review records of DW I stops during which there

is no audio or video record of the event.          In Cendejas-Fernandez v. State,

concerning another DW I stop in the 9100 block of Camp Bowie, the officer could not

remember whether he had failed to turn on his camera or whether he had no

camera. 3 In Helm v. State, the officer provided neither audio nor video record of the

detention. 4 And so it goes on Camp Bowie in Fort W orth.

      W hy do I believe there should be audio or audio and video record of the DW I

stops? Because the law requires, and did so at the time of this stop, either an audio

or audio and video record or the filing of a racial profiling report for each stop. 5 The


      2
        Wiede v. State, 214 S.W .3d 17, 24–25 (Tex. Crim. App. 2007); State v.
Ross, 32 S.W .3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by
State v. Cullen, 195 S.W .3d 696 (Tex. Crim. App. 2006).
      3
       No. 02-08-00388-CR, 2010 W L 520810, at *5, *7 (Tex. App.—Fort W orth,
February 11, 2010, no pet. h.) (Dauphinot, J., dissenting).
      4
         295 S.W .3d 780, 785 (Tex. App.—Fort W orth 2009, no pet.) (Dauphinot,
J., dissenting). The reporter’s record in Helm contains the officer’s testimony
indicating that he was at the intersection of Marquita and Camp Bowie when he
observed Helm’s driving.
      5
           See Tex. Code Crim. Proc. Ann. art. 2.133–.135 (Vernon Supp. 2009).

                                           7
City of Fort W orth has conscientiously provided the means for complying with this

law. Since at least 2004, Fort W orth has been providing in-car video cameras to

police officers:

      The Police Department currently has cameras in more than 240 marked
      Police vehicles. These include all Front Line Patrol (Beat) Vehicles,
      Traffic Division DW I unit, Commercial Vehicle Enforcement unit, and
      twelve vehicles assigned to Zero Tolerance Teams. The number of
      cameras nearly doubled during FY2004 due to a State grant that
      provided 99 additional units. This program will continue equipping
      vehicles requiring in-car video cameras increasing from 181 to 249
      Front Line Patrol (Beat) Vehicles in FY2008-2009.

      The Police Department will begin equipping Digital In-Car Video
      systems in FY09. The quantity of the Digital systems will be limited
      while tests and evaluations of various models are conducted. This will
      allow the department to ensure that the equipment meets the
      requirements of the Police Department, as well as the Prosecutors [sic]
      Office, maximizing the ability to prosecute cases using recorded video
      evidence. 6

      I cannot agree with the majority that there is no conflict between the

testimonial evidence and the record of the actual events. An appellate court should

give no weight to testimony that is disproved by the objective record of the actual

events. And I believe that the majority should address the issue of an officer’s

intentionally disabling the audio recorder and testifying directly contrary to the audio

record.



      6
         Fort W orth Crime Control and Prevention District Plan Executive Summary
FY 2010, IV. Police Department Enhancements, K. In-Car Video Cameras 10 (April
1        7         ,                  2       0          0        9        )      ,
http://www.fortworthgov.org/council_packet/render_file.asp?filename=11505/CCP
D+Executive+Summary+CCPD+Budget+FY10.doc.

                                           8
      At some point, courts must address the repeated failure of officers to use the

recording equipment and their repeated inability to remember whether the car they

were driving on patrol or to a DW I stop contained the video equipment the City of

Fort W orth has been paying for. If the law requires recording to qualify for the

exception to filing racial profiling reports, 7 then is the officer not obligated to make

sure that there is tape in a traditional video camera or that a digital camera is

activated? W hen the actual recording conflicts with the officer’s testimony, the

defendant’s testimony, or another witness’s testimony, a court cannot pretend that

the emperor is wearing new clothes just because someone testifies that he is.

      The issue before this court is whether Appellant was intoxicated at the time

he operated a vehicle in a public place, not whether the alcohol concentration in his

body was above .08 ninety minutes after he stopped driving. Both officers had

microphones and a video camera, yet we have no video record of Appellant’s control

of his physical faculties at the scene. Given Officer Evans’s testimony that her

microphone was off, we are fortunate to have an audio record. That accidental

record reveals no indication of inebriation on Appellant’s part. I must respectfully

disagree with the majority that lying down is evidence of intoxication, especially in

light of the fact that when Appellant was sitting up against the back of the seat, he

had indicated that having his hands handcuffed behind him was painful and asked

to be handcuffed in front. Further, despite Officer Evans’s testimony that a person’s

      7
           See Tex. Code Crim. Proc. Ann. art. 2.135.

                                           9
going to sleep because he is tired is, in her opinion, the same thing as passing out,

I cannot agree that lying down is the same thing as passing out. The two are quite

different.

       There is no record of the alcohol concentration in Appellant’s body at the time

he was driving. The only record of the alcohol concentration in Appellant’s body was

made more than an hour and a half after he stopped driving, and that record was

made after he had vomited. 8       It is common knowledge that even burping can

invalidate intoxilyzer test results. 9 Officer Evans testified that if a person burped or

vomited during the fifteen-minute observation period before beginning the intoxilyzer

test, the observation period had to begin again, although she did not know why. I

       8
         See 37 Tex. Admin. Code § 19.4.(c) (2006) (Tex. Dep’t of Safety, Breath
Alcohol Testing Regs.) (“All breath alcohol testing techniques, in order to be
approved, shall meet, but not be limited to, the following: (1) a period during which
an operator is required to remain in the presence of the subject. An operator shall
remain in the presence of the subject at least 15 minutes before the test and should
exercise reasonable care to ensure that the subject does not place any substances
in the mouth.”); Heeth v. State, No. 01-94-00975-CR, 1997 WL 212268, at *3 (Tex.
App.—Houston May 1, 1997, no pet.) (not designated for publication) (“In the
present case, Deputy W hitley explained that the state requires officers to observe
a DW I arrestee for fifteen minutes prior to administering the intoxilyzer test to make
sure that he consumes no more alcohol, introduces no other substances into his
mouth, and does not vomit. All of these acts would affect the results of the
intoxilyzer test.”).
       9
          See, e.g., Pastrano v. State, No. 04-95-00268-CR, 1996 W L 382983, at
*1 (Tex. App.—San Antonio July 10, 1996, no pet.) (not designated for publication)
(“The intoxilyzer expert testified that a burp which brought up liquid could affect the
results although a burp which only brought up vapor from the stomach would have
no effect.”); Hujar v. State, No. 01-94-00024-CR, 1995 W L 431503, at *4 (Tex.
App.—Houston [1st Dist.] July 20, 1995, no pet.) (not designated for publication)
(“Officer Jones testified that if a subject belched or burped before a test it could bring
up residual alcohol from the stomach and cause a falsely high reading. He testified
that if a subject burps, he must start the 15-minute waiting period over.”).

                                           10
would submit that the observation properly begins again only if no residue of vomit

is left in the mouth. As long as there is residue of the vomit, the testing cannot be

said to be wholly reliable. And the majority may be correct that if a valid test reveals

a breath alcohol level of .09, that is some evidence there was alcohol in the body

when the subject was driving. But, realistically, if, at the time the test is performed,

there is no evidence to show whether the body was in the absorption mode or the

dissipation mode, there is no way to tell whether the alcohol concentration in the

body was higher, lower, or the same when Appellant was operating his truck. In this

case, there is the additional problem of Appellant’s having vomited and no evidence

that the vomit residue had been cleared from his mouth when he breathed into the

tube of the intoxilyzer. As the majority points out, no one attempted to prove

Appellant’s blood alcohol level at the time he was operating the vehicle.

      The issue is not whether Appellant could properly be cited for a traffic violation

or whether there was some evidence that would allow a jury to suspect that he had

been drinking, but whether the State proved beyond a reasonable doubt that he was

intoxicated when he operated the vehicle. The State did not.

      For these reasons, I cannot join the majority’s well-written opinion and must

respectfully dissent.



                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PUBLISH

DELIVERED: March 4, 2010

                                          11
