             NUMBERS 13-06-00105-CR and 13-06-00106-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ROBERTO CAPLES,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


               On appeal from the County Court at Law No. 2
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Vela
                Memorandum Opinion by Justice Rodriguez

      Appellant Roberto Caples appeals his convictions for driving while intoxicated

(DWI), see TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), and duty on striking a fixture or

highway landscaping—in this case a railroad crossing gate and switching box—greater

than $200. See TEX . TRANSP . CODE ANN . § 550.025(b)(2) (Vernon 1999). A jury found
appellant guilty of both charges. For the DWI conviction, appellant received a sentence

of 180 days confinement in the Hidalgo County Jail, suspended for one year, a fine of

$1000, and 40 hours community service. For the duty on striking a fixture conviction, he

received a sentence of 180 days confinement, suspended for 180 days, a fine of $350, 80

hours of community service, and restitution to Rio Valley Switching Company in the amount

of $2549.25.

        By four issues, appellant contends the evidence is legally and factually insufficient

to establish that he was driving the car involved in the accident, the trial court abused its

discretion in admitting evidence for impeachment purposes, and the instruction to disregard

the impeachment evidence as substantive evidence did not cure any harm. We affirm.

                                     I. Sufficiency of the Evidence

        By his first two issues, appellant challenges the legal and factual sufficiency of the

evidence to establish that he was the driver of the car, an element of both offenses for

which he was convicted.1

                                         A. Standard of Review

        In assessing the legal sufficiency of the evidence to support a criminal
        conviction under Jackson v. Virginia, 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 juror could
        have found the essential elements of the crime beyond a reasonable
        doubt.

Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (citing Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.


        1
          Appellant identified testim ony, with record cites, regarding intoxication. He did not, however, provide
argum ent or authority to support a sufficiency challenge as to that elem ent. Therefore, to the extent the
sufficiency of the evidence is challenged as to intoxication, we conclude that issue has been inadequately
briefed, and we will not address it. See T EX . R. A PP . P. 38.1(h).
                                                        2
App. 2007)). We do not reevaluate the weight and credibility of the evidence, whether

circumstantial or direct, and we do not substitute our own judgment for the trier of fact.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Beckham v. State, 29

S.W.3d 148, 151 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Reconciliation

of conflicts in the evidence is within the exclusive province of the jury. See Mosley v.

State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). As such, the trier of fact is free

to accept or reject all or any portion of the witness's testimony. See Ozuna v. State,

133 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.). An appellate court,

faced with a record of historical facts that supports conflicting inferences, must also

presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that

resolution. Jackson, 443 U.S. at 326; see Turro v. State, 867 S.W.2d 43, 47 (Tex.

Crim. App. 1993).

      "Evidence is factually insufficient to support the verdict if it is clearly wrong or

manifestly unjust or against the great weight and preponderance of the evidence."

Rollerson, 227 S.W.3d at 724 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex.

Crim. App. 2006)); see Johnson v. State, 23 S.W.3d 1, 11-12 (Tex. Crim. App. 2000).

      Unless the available record clearly reveals a different result is
      appropriate, an appellate court must defer to the jury's determination
      concerning what weight to give contradictory testimonial evidence
      because resolution 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.




                                            3
      Both standards require the reviewing court to consider all of the evidence.

Rollerson, 227 S.W.3d at 724. And, "[a]ll of the evidence is considered by the

reviewing court, regardless of whether it was properly admitted." Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Chambers v. State, 805 S.W.2d 459,

460 (Tex. Crim. App. 1991). Furthermore, each fact need not point directly and

independently to the accused's guilt, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.       Hooper, 214

S.W.3d at 13; see Johnson, 871 S.W.2d at 186 ("It is not necessary that every fact point

directly and independently to the defendant's guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating circumstances.").

                                   B. Applicable Law

      The offense of driving while intoxicated is committed when a person is intoxicated

while operating a motor vehicle in a public place. TEX . PENAL CODE ANN . § 49.04 (Vernon

2003). The offense of duty on striking fixture or highway landscaping is committed when

the operator of a vehicle involved in an accident resulting in $200 or more damage to a

fixture legally on or adjacent to a highway fails to take reasonable steps to notify the

property owner. TEX . TRANSP . CODE ANN . §550.025(a)(1), (b)(2) (Vernon 1999).



                                      C. Analysis

                                 1. Legal Sufficiency




                                           4
        By his first issue, appellant argues that there is no direct evidence that he was

driving at the time of the accident, other than Quintanilla's out-of-court statement2 that was

so unreliable that it was no evidence. We disagree.

        In this case, a videotape was made of the arrest and played to the jury. On the

arrest videotape, appellant stated that he was driving. The videotape was played for the

jury and admitted into evidence. The jury saw and heard the officer ask, "And you were

driving?" and appellant answer, "Yep."

        Appellant's admission that he was driving the vehicle is also corroborated by

the testimony of Ignacio Vega, a security guard who witnessed the accident. Vega

described the vehicle as a white Jeep3 and testified that he did not see who was

sitting on the driver's side of the vehicle but that he heard a male voice and a female

voice. He testified that, after the accident, he saw a female get out of the passenger

side of the Jeep and, while she was out of the vehicle saying there was no damage

to the front of the Jeep, he heard a male voice speaking to her from what appeared

to him to be the driver's side. The female attempted to open the driver's door but was

unable to do so, and the male voice told her to get back inside. She did so, and they

left the scene. Based on this testimony, a jury could have determined that a man was

the driver and a woman was the passenger, and although there was evidence that the

driver's side door was inoperable, the jury could have found it unlikely that the female



        2
         Lisa Quintanilla m ade a written statem ent the day after the accident. In her statem ent, Quintanilla
stated that appellant had been driving.

        3
            It is undisputed that appellant owned the Jeep that was involved in the accident.



                                                        5
was driving and climbed over the male passenger to survey the damage to the vehicle

and then climbed into the vehicle over him to drive away.

      There was also testimony that, as shown in the photographs of the Jeep taken

during the search and inventory of the vehicle, the passenger seat was further back

than the driver's seat, and that appellant is taller than Lisa Quintanilla, the other

person in the vehicle at the time of the accident. Although none of the officers

testified that they had moved the car seats, Officer Joe Aguilar with the Mission Police

Department testified that it was common practice to move the seats during an

inventory to be sure nothing under the seats is overlooked. The jury could have

believed it likely that one or both of the seats had been moved during the inventory,

or even that Quintanilla, as the passenger, may have just preferred having her seat

further back.

      Officer Aguilar testified that he located the Jeep parked at a Circle K and that

the driver's side of the Jeep from front to rear was "caved in" and the driver's side

window was shattered. When he first saw appellant, Officer Aguilar testified that he

noticed evidence of the collision—blood, glass, and scratches—on the left side of

appellant's head. Officer Aguilar saw no bruises or red marks on Quintanilla's left

side. He also testified that Quintanilla said appellant was driving and that appellant

admitted to driving; Officer Aguilar was "definitely sure" that appellant was driving the

vehicle. Appellant was arrested for DWI and Quintanilla for public intoxication.

      Officer Orlando Cedillo, also with the Mission Police Department, after being

dispatched to the accident scene, went to the Circle K where Officer Aguilar had

found the vehicle parked. Officer Cedillo later viewed the video of the stop and saw


                                           6
appellant say that he was driving.                          On cross-examination, Officer Cedillo

acknowledged that it was possible that appellant said he was driving when in fact he

was not.

        On the arrest videotape, Quintanilla said that she "usually drives" and that after

she got into the vehicle, she felt a sharp pain to her left side. 4 Quintanilla also

testified at trial that, among other things, (1) she remembered driving to Pepe's, but

did not recall who was driving to and from the accident because she was intoxicated;

(2) it was possible she had been driving since she "would always drive"; (3) when she

went to the police department the morning after the accident to pick up her things,

they gave her the Jeep keys as if she had been driving; and, (4) the pictures show the

driver's side seat to be further toward the front than the passenger's side, so she was

"possibly driving" because appellant is taller.5                    On two occasions, the jury heard

Quintanilla express the possibility that she was driving when the accident occurred—on the

arrest videotape and at trial. To the extent her statements are conflicting with other

evidence that appellant was driving, the jury could have resolved that conflict in favor of

the prosecution, and we must defer to that resolution. See Jackson, 443 U.S. at 326;

Turro, 867 S.W.2d at 47.



        4
         Appellant argues that because Quintanilla's injuries were to her left side, the physical evidence is
consistent with her testim ony in court that she was the one who was driving and, thus, underm ines confidence
in her out-of-court statem ent that appellant was driving. However, the jury was free to accept or reject all or
any portion of her testim ony. See Ozuna v. State, 133 S.W .3d 601, 606 (Tex. App.–Corpus Christi 2006, no
pet.).

        5
         Quintanilla also testified at trial that she had m ade a written statem ent the day after the accident in
which she said appellant had been driving. Appellant objected to this testim ony on the basis that the State
was calling Quintanilla as an adverse witness for the sole purpose of im peaching her with this statem ent. W e
address this testim ony, objection, and argum ent in appellant's third issue.



                                                        7
        Thus, viewing the evidence in the light most favorable to the verdict, we

conclude that, based on the evidence and reasonable inferences therefrom, a rational

juror could have found, beyond a reasonable doubt, that appellant was driving the

vehicle. See Jackson, 443 U.S. at 318-19; Rosillo, 953 S.W.2d at 811.

        Moreover, reviewing the evidence in a neutral light and deferring to the jury's

determination concerning what weight to give contradictory testimonial evidence, see

Johnson, 23 S.W.3d at 8, we cannot conclude that the evidence is so weak that the

jury's verdict seems clearly wrong and manifestly unjust as appellant urges, 6 see

Watson, 204 S.W.3d at 414-15, or is against the great weight and preponderance of

the evidence. See Rollerson, 227 S.W.3d at 724.

        Accordingly, we conclude that the evidence was legally and factually sufficient to

establish that appellant was driving his Jeep when the accident occurred.                               We

overrule appellant's first and second issues.

                      II. Admission of Quintanilla's In-Court Testimony

        By his third issue, appellant contends that the trial court abused its discretion

in allowing the State to call Quintanilla as a witness when the State intended to

impeach Quintanilla's in-court testimony—anticipated to be that she was the

driver—with her post-arrest written statement—that appellant was the driver.

Appellant asserts that the State's impeachment questioning of Quintanilla was more

prejudicial than probative because the State was using the testimony as substantive

        6
         In his factual sufficiency argum ent, appellant com plains that Quintanilla's out-of-court written
statem ent is unreliable as that of a paid inform ant and is incom petent because she was "beastly drunk."
However, even were we to consider this out-of-court statem ent in our evidentiary review, we need not address
the objections because we consider all evidence, regardless of whether it was properly adm itted. See
Johnson v. State, 871 S.W .2d 183, 186 (Tex. Crim . App. 1993).



                                                     8
evidence to establish who was driving the car and not simply as impeachment

evidence.

                     A. Standard of Review and Applicable Law

       We will not disturb a trial court's evidentiary ruling absent an abuse of discretion.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As long as the trial

court's ruling is within the zone of reasonable disagreement and is correct under any theory

of law applicable to the case, it must be upheld. Id.

       Texas Rule of Evidence 607 permits any party, including the party calling the

witness, to use a witness's prior inconsistent statement as a means of impeachment. See

TEX . R. EVID . 607. However, a party may not use impeachment by prior inconsistent

statements as a mere subterfuge to get otherwise inadmissible hearsay evidence before

the jury. Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999); Pruitt v. State, 770

S.W.2d 909, 909 (Tex. App.–Fort Worth 1989, pet. ref'd). In such a case, the party

profits from the witness's testimony only if the jury misuses the impeachment

evidence by considering it for its truth, and thus any probative value the impeachment

evidence might have is substantially outweighed by its prejudicial effect. See TEX . R.

EVID . 403; Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999). A party's knowledge

that its own witness will testify unfavorably is a factor the trial court must consider when

determining whether the evidence is admissible under rule 403. Hughes, 4 S.W.3d at 5;

see Barley v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim. App. 1995).

                                       B. Analysis




                                             9
        At the final pretrial hearing and before Quintanilla's trial testimony, appellant

objected that, under rule 403, the State would profit from her testimony if the jury used her

written statement, not only for impeachment purposes, but also as direct evidence. He

argued that the probative value of that statement would be substantially outweighed

by its prejudicial effect.7 TEX . R. EVID . 403. The trial court overruled this objection and

allowed the State to call Quintanilla as a witness.8 Tex. R. Evid. 613(a).

        After asking Quintanilla her name, age, and relationship with appellant, the

State asked her questions regarding the accident.                           While viewing the arrest

videotape, Quintanilla testified that she remembered getting arrested but that she did

not remember anything about the accident, including who was driving, because she

was intoxicated. At trial, Quintanilla testified that, for various reasons, it was possible

that she had been driving when the accident occurred. Quintanilla also testified that

she did not remember making a written statement the day after the accident. In that




        7
           Appellant also argued pre-trial and now argues on appeal that the trial court abused its discretion
because the probative value of the evidence—Quintanilla's written statem ent providing that appellant was
driving— was slight because that statem ent was given while Quintanilla was in custody and was "beastly
drunk" and vom iting. The record, however, does not support this argum ent. The statem ent about which
appellant com plains was taken January 5, 2004, the day following the accident. Quintanilla testified that she
went back to m ake the statem ent after she was released from jail that m orning. Investigator Miguel Luna
testified that he took her statem ent "probably around—between nine and ten o'clock" that m orning and that
Quintanilla did not seem intoxicated or highly intoxicated while he was taking her statem ent— "[n]ot at all."
There is no testim ony that Quintanilla was vom iting at that tim e. The only evidence regarding her drunken
state was during her arrest on January 4, 2004.

       Appellant also contends that the probative value of the evidence was slight because the statem ent
was unsworn and uncross-exam ined. However, we will only consider contentions that are supported by clear
and concise argum ents with appropriate citations to authorities and to the record. T EX . R. A PP . P. 38.1(h).
Because these contentions are inadequately briefed, we will not address them .

        8
          On appeal the State concedes that it m ay have believed that Quintanilla intended to say she was the
driver. The State notes, however, that such testim ony was never given. Rather, Quintanilla testified that she
did not rem em ber giving the statem ent.



                                                      10
statement, admitted without objection as State's Exhibit 8, Quintanilla said that appellant

was driving.

        Quintanilla's challenged statement, however, was not the only evidence that

appellant was driving. Before the State called Quintanilla, the jury had heard appellant

state on the arrest videotape that he was driving—the substance of Quintanilla's written

statement that is being challenged by appellant.9 In addition, we have concluded that

evidence presented to the jury, as discussed above in the first two issues, was legally and

factually sufficient to establish appellant was driving the Jeep at the time of the accident.

And, Quintanilla's written statement was not a direct contradiction of her trial testimony

because she did not testify at trial that she was driving, but that she was possibly the driver

and could not remember who was driving when the accident occurred.

        Considering that the State believed Quintanilla would testify unfavorably, we,

nonetheless, find little risk of prejudice under rule 403 to appellant from misuse, if any, by

jurors of information learned from the State's impeachment questioning of Quintanilla. The

record reveals other sources of that evidence. We cannot conclude that the State

profited from Quintanilla's testimony; thus, the probative value of Quintanilla's statement,

the impeachment evidence, was not substantially outweighed by its prejudicial effect.

The trial court did not abuse its discretion in admitting the complained-of testimony. We

overrule appellant's third issue.




        9
         In addition, on the arrest video, Quintanilla inform ed the officer that she was possibly driving, a
statem ent that is consistent with her trial testim ony. Thus, the jury had heard this com m ent before it heard
Quintanilla's trial testim ony.



                                                      11
        Having overruled the third issue, we need not address appellant's fourth issue

wherein appellant contends the instruction not to consider impeachment evidence as

substantive evidence did not cure any harm beyond a reasonable doubt.10 See TEX .

R. APP. P. 47.1.

                                                III. Conclusion

        We affirm the judgments of the trial court.



                                                                  NELDA V. RODRIGUEZ
                                                                  Justice

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

Memorandum Opinion delivered and
filed this 22nd day of May, 2008.




        10
           Although no record citation is provided by either party and the trial court gave only the sam e general
instruction throughout the trial that the jury, as the sole judge of the witnesses and their testim ony, was to give
each and every witness the credibility deem ed necessary, the parties appear to agree that an instruction was
given that preserved the im peachm ent argum ent.



                                                        12
