                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00133-CR


RONNIE LAMOUNTE MOSS                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1410895

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      Ronnie Lamounte Ross challenges his misdemeanor driving while

intoxicated conviction. Tex. Penal Code Ann. § 49.04 (West Supp. 2017). In two

issues, he argues that the evidence is insufficient to support the findings that his




      1
       See Tex. R. App. P. 47.4.
mental and physical faculties were impaired.2 See id. § 49.01(2)(A) (West 2011)

(defining intoxication as “not having the normal use of mental or physical faculties

by reason of the introduction of alcohol” among other substances). Because we

hold that the evidence is sufficient to support both of those findings, we affirm.

                                   Background

      Officer Joshua Rodriguez with the Fort Worth police department was on

his way home from work around 2:00 a.m. when he saw a car stopped in the

middle of Benbrook Boulevard; a man police later identified as appellant was

passed out in the driver’s seat. Rodriguez got out of his car and knocked on the

passenger side window, but appellant did not wake up. Rodriguez walked to the

driver’s side of the car and shined his flashlight on appellant; he was “slumped

over,” his foot was on the brake, and there were keys in the car’s ignition.

Appellant finally woke up when Rodriguez began “jiggling” the car door.

According to Rodriguez, appellant was “out of it,” but at Rodriguez’s instruction,

he pulled into the parking lot of a nearby convenience store.

      After appellant pulled into the parking lot, he rolled down the window.

Rodriguez heard appellant slurring his speech and saw that appellant had


      2
        Appellant has not challenged whether the evidence is sufficient to support
any other element of the offense of DWI. See, e.g., Dornbusch v. State, 262
S.W.3d 432, 436–38 (Tex. App.––Fort Worth 2008, pet. ref’d) (citing cases with
similar facts and holding that evidence was sufficient to show that Dornbusch
operated motor vehicle when he was found in parking lot asleep or passed out in
driver’s seat, with engine running and headlights and radio on, and car was in
gear but stationary only because it was resting against the curb).


                                          2
glossed-over eyes; Rodriguez also smelled something fruity. Rodriguez believed

the smell was “indicative of alcohol.” Appellant kept telling Rodriguez to let him

go home, but Rodriguez called 911 and told appellant to wait for the police.

      Benbrook police officer Timothy Miller responded to the 911 call. Miller

noticed that appellant’s eyes were bloodshot, watered, and heavy, and he could

smell the odor of an alcoholic beverage on appellant’s breath. Appellant told

Miller that he had drunk two beers. Appellant exited the car, and Miller noticed

that appellant was unsteady as he walked.                  Miller decided to perform

standardized field sobriety tests on appellant.

      Appellant showed six out of six clues indicating intoxication during the

horizontal gaze nystagmus test, four out of eight clues during the walk-and-turn

test, and two out of four clues during the one-leg-stand test. Specifically, during

the walk-and-turn test, appellant could not keep his balance while listening to

instructions, lost his balance while walking, and stumbled as he was turning

around.    During the one-leg-stand test, he swayed while balancing.           Miller

determined––based on his own observations of appellant, Rodriguez’s

observations, and the fact that appellant had been “passed out in a lane of

traffic”––that appellant had lost the normal use of his mental and physical

faculties and arrested him for DWI. While Miller was placing appellant in his

squad car, appellant stated, “I’m not drunk to the point where I would kill

somebody.” At the police station, appellant refused to provide a breath specimen

for testing and refused additional field sobriety tests.


                                           3
                               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 review of the sufficiency of the evidence to support a conviction, we view

all of the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could have found the essential elements of the crime

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

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is

the sole judge of the weight and credibility of the evidence and may draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599; Blea v. State, 483 S.W.3d

29, 33 (Tex. Crim. App. 2016); see Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979).   We determine whether inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).

                 Conviction Supported by Sufficient Evidence

      Relevant evidence of intoxication as it is defined in the penal code includes

any sign of impairment in the ability to speak, refusal to take a blood-alcohol test,

unsteady balance, gait problems, the odor of alcohol, glassy eyes, bloodshot

eyes, the presence of intoxication clues during standardized field sobriety tests,


                                         4
and admissions concerning what, when, and how much a person has drunk.

See, e.g., Burnett v. State, No. PD-0576-16, 2017 WL 4158919, at *6 (Tex. Crim.

App. Sept. 20, 2017); Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.

2010); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001). Rodriguez’s

and Miller’s testimony is sufficient to support the determination that appellant

exhibited all of these signs of intoxication. And the dashcam video admitted into

evidence is consistent with their observations that appellant was unsteady and

had problems with his balance during the sobriety tests.         Likewise, Miller’s

testimony that he determined that appellant “did not have control over his normal

mental and physical capabilities” and was intoxicated is relevant evidence of

intoxication.3 See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979);

Jackson v. State, 468 S.W.3d 189, 193 (Tex. App.––Houston [14th Dist.] 2015,

no pet.).

      Appellant argues in his briefing that Miller testified only that appellant

appeared to be a danger to himself and others––an element of the offense of

public intoxication, not DWI. But although Miller testified that appellant appeared

to be a danger to himself and others, he also testified that appellant did not have

control over his mental and physical capabilities.    Appellant also argues that

Miller did not state any specific facts in support of his conclusion that appellant


      3
       Miller testified that he typically watches DWI suspects to determine if they
can appear to do “normal things” and that appellant did not appear to be able to
do those things.


                                        5
was intoxicated. But as we have pointed out, both Miller and Rodriguez testified

that appellant exhibited multiple signs of intoxication.

      Based on the foregoing evidence of “the usual indicia of intoxication,” we

hold that a rational trier of fact could have found beyond a reasonable doubt that

appellant did not have “the normal use of mental or physical faculties by reason

of the introduction of alcohol.” See, e.g., Tex. Penal Code Ann. §§ 49.01(2)(A),

49.04; Kirsch, 306 S.W.3d at 745; Zill v. State, 355 S.W.3d 778, 785–88 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).

                                    Conclusion

      We overrule both of appellant’s issues and affirm the trial court’s judgment.




                                                     /s/ Wade Birdwell
                                                     WADE BIRDWELL
                                                     JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018




                                          6
