                        NUMBERS 13-05-169-CR & 13-05-170-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


MARIA VERA,                                                                   Appellant,

                                                        v.

THE STATE OF TEXAS,                                                           Appellee.


 On appeal from the County Court at Law of Kleberg County, Texas.


                                MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      Appellant, Maria Vela, was convicted of driving while intoxicated (DWI)1 in trial cause

number 35878-1 (appellate cause number 13-05-00169). Appellant was also convicted




      1
          See T EX . P EN AL C OD E A N N . § 49.04 (Vernon 2003).
of possessing less than two ounces of marihuana2 in trial cause number 35878-2

(appellate cause number 13-05-00170-CR). The trial court assessed punishment for the

DWI conviction, which was enhanced,3 at 365 days’ imprisonment.                               The term of

imprisonment was suspended for one year, during which time appellant was placed on

community supervision. The trial court also imposed a $350.00 fine and $328.50 in court

costs. The trial court assessed punishment for the possession-of-marihuana conviction

at 180 days’ imprisonment. The term of imprisonment was suspended for two years,

during which time appellant was placed on community supervision. The trial court also

imposed a $250.00 fine. In two issues, appellant argues that (1) her convictions are

supported by legally and factually insufficient evidence, and (2) her punishment is

disproportionate to the seriousness of her crimes, in violation of the Eighth and Fourteenth

Amendments to the United States Constitution. We affirm.

                                       I. Legal & Factual Sufficiency

A. Standards of Review

        In reviewing the legal sufficiency of the evidence to support a conviction, we view

all the evidence in the light most favorable to the verdict in order to determine whether any

rationale trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.4 In a factual sufficiency review, we view the evidence in a neutral light




        2
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.121(a), (b)(1) (Vernon 2007).

        3
            See T EX . P EN AL C OD E A N N . § 49.09(a) (Vernon 2003).

        4
        Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W .3d 691, 693 (Tex. Crim .
App. 2005).

                                                           2
and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt.5

We then determine whether the evidence supporting the verdict is so weak that the verdict

is clearly wrong and manifestly unjust or whether the verdict is against the great weight and

preponderance of the conflicting evidence.6 We will not reverse a case on a factual

sufficiency challenge unless we can say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the jury's verdict.7 The

fact-finder is the exclusive judge of the witnesses’ credibility and of the weight to be given

to their testimony.8

B. Trial Evidence

       The State’s case against appellant was built on the testimony of Kingsville Police

Department Officers Henry Cantu and Herman Cantu. Officer Henry Cantu testified that

on April 17, 2004, at approximately 2:20 a.m., he witnessed appellant run a stop sign while

operating a motor vehicle. After appellant failed to immediately stop her vehicle in

response to the flashing lights on his patrol vehicle, Officer Henry Cantu turned on his

vehicle’s siren. Appellant then stopped her vehicle in front of a residence, which was her

home. Appellant immediately exited the vehicle and began walking towards the residence.

Officer Henry Cantu interpreted appellant’s conduct as an attempt to evade him; he

commanded appellant to “stop,” and appellant then turned around and walked towards

him. He then immediately placed appellant in handcuffs and put her in the back of his


       5
           See W atson v. State, 204 S.W .3d 404, 414 (Tex. Crim . App. 2006).

       6
           Id. at 415.

       7
           Id. at 417.

       8
           Cain v. State, 958 S.W .2d 404, 408-09 (Tex. Crim . App. 1997).

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patrol vehicle. Officer Henry Cantu testified that (1) appellant admitted to having a beer

or two; (2) her speech was slightly slurred; (3) her eyes were red and bloodshot; (4) her

breath smelled of alcohol; (5) she failed to give straightforward answers to questions

asked; (5) he was unable to completely perform a horizontal gaze nystagmus test on

appellant because he could not get her to concentrate on the tip of his pen; and (6) she

refused to take a breathalyzer test. He testified that these factual observances were

indicators of intoxication, and he expressed his belief that appellant was intoxicated.

       Officer Henry Cantu further testified that (1) the vehicle appellant was seen

operating was registered under her name; (2) a usable quantity of marihuana was found

in the ashtray of her vehicle; (3) the vehicle emitted an odor of marihuana; (4) appellant

stated that the marihuana belonged to a friend, and she asked for leniency in exchange

for her providing the friend’s name; and (5) the vehicle contained a second occupant,

Daniel Trevino, who denied ownership of the marihuana. Officer Herman Cantu, who

arrived on the scene shortly after appellant’s vehicle was pulled over, testified that (1) he

found marihuana cigarettes in appellant’s vehicle, commonly referred to as “roaches”; (2)

he smelled a fresh odor of burned marihuana in the vehicle; (3) the amount of marihuana

was a usable quantity; and (4) appellant’s hands did not smell of marihuana, which is

typically an effective means of telling whether one has recently used marihuana.

       Daniel Trevino, who was in appellant’s vehicle at the time she was stopped by

Officer Henry Cantu, testified in appellant’s behalf. Trevino testified that (1) he was

currently dating appellant and that he had been dating her at the time of her arrest; (2)

appellant had not had anything to drink on the night in question; and (3) he did not know

how the marihuana discovered by the officers came to be in appellant’s vehicle. Dr. Jose

                                             4
M. Ugarte also testified for appellant. He testified that (1) he had been appellant’s medical

doctor since 1993; (2) appellant suffered from systemic lupus erythematosus, fibromyalgia,

and chronic depression, for which she received medication; and (3) these ailments, along

with the medication required for proper treatment, can affect a person’s speech and

behavior.

C. Sufficiency of Evidence Regarding DWI Conviction

        In order to convict appellant of driving while intoxicated, the State had to prove

beyond a reasonable doubt that appellant operated a motor vehicle in a public place while

intoxicated.9 On appeal, appellant challenges the sufficiency of the evidence proving that

she was intoxicated. Under the Texas Penal Code, the term “intoxicated” means (1) “not

having the normal use of mental or physical faculties by reason of the introduction of

alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more

of those substances, or any other substance into the body,” or (2) “having an alcohol

concentration of 0.08 or more.”10

        Viewed in a light most favorable to the verdict, we find that the aforementioned

testimony of Officer Henry Cantu constitutes legally sufficient evidence of appellant’s

intoxication.11 His observations regarding appellant’s slurred speech, her bloodshot eyes,

and an alcoholic odor on appellant’s breath, all constitute evidence of intoxication,12 as



        9
            See T EX . P EN AL C OD E A N N . § 49.04.

        10
             Id. § 49.01 (Vernon 2003).

        11
          See Little v. State, 853 S.W .2d 179, 183 (Tex. App.–Corpus Christi 1993, no pet.) (“The
uncorroborated testim ony of an arresting officer is sufficient to prove the elem ent of intoxication.”).

        12
             Cotton v. State, 686 S.W .2d 140, 143 n.3 (Tex. Crim . App. 1985).

                                                         5
does appellant’s refusal to take a breathalyzer test.13 When viewed in a neutral light, we

cannot say that the jury was not rationally justified in finding appellant guilty beyond a

reasonable doubt. The jury was free to reject Trevino’s testimony that appellant did not

drink on the night in question; furthermore, they were free to conclude that appellant’s

behavior was the product of intoxication, rather then a product of her physical ailments or

medication.

D. Sufficiency of Evidence Regarding Possession of Marihuana Conviction

       In order to convict appellant of possession of marihuana, the State had to prove

beyond a reasonable doubt that appellant knowingly or intentionally possessed a usable

quantity of marihuana.14 On appeal, appellant asserts that the State did not prove that the

substance found in her vehicle was marihuana. Appellant specifically asserts that “the

[S]tate never offered a lab test result indicating, in fact, that the alleged ‘roaches’ found in

the ash tray of [her] car contained marijuana. All that was offered by the [S]tate was the

testimony of the officers as to what these ‘roaches’ may have contained.”

       In addition to Officers Henry Cantu and Herman Cantu stating that, based on their

experience, they believed that the cigarettes found in appellant’s vehicle contained

marihuana, Officer Henry Cantu also testified that appellant openly admitted to him that the

cigarettes contained marihuana. He testified that appellant told him that the marihuana

belonged to a friend, and she asked for leniency in exchange for her providing the friend’s

name. Appellant never attempted to refute this testimony. Accordingly, we find that the



       13
            See Hartman v. State, 198 S.W .3d 829, 834 (Tex. App.–Corpus Christi 2006, pet. dism ’d).

       14
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.121(a).

                                                          6
aforementioned testimony constitutes legally and factually sufficient evidence that the

substance found in appellant’s possession was marihuana.

                                      II. Disproportionate Punishment

        Texas courts have consistently held that even constitutional errors involving

disproportionate sentences can be waived by failing to object at trial.15 Here, the record

reflects that appellant did not object to the imposition of punishment at trial nor did she

raise the complaint in a motion for new trial.16 Accordingly, we conclude that appellant

failed to preserve this complaint for review. In any event, the punishment does not violate

constitutional provisions. The Eighth Amendment does not require strict proportionality

between the crime and the sentence; rather, it forbids only extreme sentences that are

grossly disproportionate.17 Texas courts have traditionally held that, as long as the

punishment assessed is within the range prescribed by the Legislature in a valid statute,

the punishment is not excessive.18

        The punishments assessed in the instant case were within the statutorily permissible

range. Thus, appellant’s punishments were not grossly disproportionate to the offenses.19

Because appellant has failed to preserve her complaint on appeal, and because her


        15
            See Curry v. State, 910 S.W .2d 490, 497-98 (Tex. Crim . App. 1995) (citing Garcia v. State, 887
S.W .2d 846, 861 (Tex. Crim . App. 1994) (failure to raise Eighth Am endm ent objection at trial waives any such
claim on appeal)); Quintana v. State, 777 S.W .2d 474, 479 (Tex. App.–Corpus Christi 1989, pet. ref’d) (holding
that failure to object to a sentence as cruel and unusual forfeits error).

        16
             See T EX . R. A PP . P. 33.1(a).

        17
             See Ewing v. California, 538 U.S. 11, 23 (2003).

        18
          See Jordan v. State, 495 S.W .2d 949, 952 (Tex. Crim . App. 1973); Trevino v. State, 174 S.W .3d
925, 928 (Tex. App.–Corpus Christi 2005, pet. ref'd); see also Escochea v. State, 139 S.W .3d 67, 80 (Tex.
App.–Corpus Christi 2004, no pet.).

        19
             See Ewing, 538 U.S. at 23.

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punishment fell within the limits prescribed by a valid statute, we overrule appellant’s final

issue.

                                       III. Conclusion

         We affirm the trial court’s judgments.




                                                  LINDA REYNA YAÑEZ,
                                                  Justice




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

Memorandum Opinion delivered and filed
this the 29th day of August, 2008.




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