                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00076-CR


JUAN ANTONIO MALDONADO                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      In two points, appellant Juan Antonio Maldonado appeals his third-degree-

felony conviction and his eight-year sentence for driving while intoxicated (DWI).2

Appellant contends that the jury erred by assessing his punishment at eight

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. §§ 49.04(a) (“A person commits an offense if
the person is intoxicated while operating a motor vehicle in a public place.”),
.09(b)(2) (West Supp. 2013).
years’ confinement and that the evidence is insufficient to support his conviction.

We affirm.

                               Background Facts

      One night in February 2012, Janet Obeta was driving to work in Arlington

when appellant crashed his car into her car on its passenger side. After the

crash, appellant continued driving while Obeta followed him and called 911.

After appellant and Obeta stopped driving, Obeta asked appellant why he had

crashed into her car, and appellant said that he was sorry and that he was going

to give Obeta $2,000.

      Arlington police officer Matt Johnson received a dispatch and arrived at the

scene. To Officer Johnson, appellant looked dazed and confused; he had a

“slow reaction time.” Appellant told Officer Johnson that he had been drinking

alcohol at a nearby club, admitted that he should not have been driving,

conceded that he had caused the crash, and stated “that he believed he was

intoxicated . . . or that he had had too much to drink.” Officer Johnson noticed

that appellant’s eyes were red and bloodshot and that his breath smelled like

alcohol. Appellant was not, however, slurring his words. Also, he did not say

anything inappropriate or have trouble standing, and he appropriately provided

his driver’s license and his proof of insurance to Officer Johnson.          While

appellant was walking after the police arrived, Obeta noticed that he was

staggering.




                                        2
       Upon Officer Johnson’s request, appellant performed three standardized

field sobriety tests on a flat concrete surface. 3        On the horizontal-gaze-

nystagmus test, Officer Johnson saw four (of six) “clues” that indicated

appellant’s intoxication.   On the walk-and-turn test, Officer Johnson saw four

clues of appellant’s intoxication, and on the one-legged-stand test, Officer

Johnson saw two clues. Because Officer Johnson believed that appellant had

lost the normal use of his mental and physical faculties, he arrested appellant for

DWI.

       At a jail, appellant provided two breath samples for analysis in an

Intoxilyzer machine.        The machine measured the samples at alcohol

concentrations 4 of .071 and .072.

       Appellant also agreed to answer Officer Johnson’s questions. In doing so,

he said that he had started drinking alcohol at approximately 3:30 p.m., that he

had consumed several beers, and that he had drunk some alcohol approximately

twenty minutes before the crash, which occurred at approximately 10:45 p.m. At

the jail, appellant again performed two of the field sobriety tests and, according to

Officer Johnson, did “rather well” on them.



       3
       Officer Johnson testified that he had received training, through taking a
course and through on-the-job mentoring, on properly administering these tests.
Officer Johnson’s testimony revealed his knowledge concerning the
administration of the tests.
       4
       See Tex. Penal Code Ann. § 49.01(1)(A) (West 2011).


                                         3
      A Tarrant County grand jury indicted appellant for DWI. The indictment

alleged that appellant had prior convictions—in 2004 and 2009—for DWI.5

Appellant filed several pretrial motions and pled not guilty.

      After receiving evidence and arguments from the parties, the jury

deliberated for twenty minutes and found appellant guilty. The parties presented

further evidence and arguments concerning appellant’s punishment, 6 and the jury

assessed eight years’ confinement while rejecting appellant’s request to be

placed on community supervision. The trial court asked appellant whether there

was any legal reason why a sentence should not be pronounced, and after

appellant responded that there was no reason, the trial court sentenced him in

accordance with the jury’s verdict. After appellant unsuccessfully sought a new

trial 7 on the ground that his sentence was disproportionate to his offense, he

brought this appeal.

                        Allegedly Excessive Punishment

      In his first point, appellant contends that the jury “erred by imposing an

unfair and disproportionate sentence for the specific set of facts of this offense

and the defendant of this case.” Particularly, appellant contends that his eight-


      5
       At trial, appellant stipulated to these prior convictions.
      6
         The State reoffered the evidence that it had presented during the guilt
phase of appellant’s trial. Appellant called his cousin and a probation officer to
testify.
      7
       See Tex. R. App. P. 21.8(a), (c).


                                           4
year sentence violates rights granted to him by the federal and state constitutions

because he caused only a minor accident with no serious injuries, was

cooperative with the police, produced a breath test that measured “below the

legal limit,” appeared to be sober once he arrived at the jail, and had not

previously been convicted of a felony. See U.S. Const. amend VIII (prohibiting

the imposition of cruel and unusual punishment); Tex. Const. art. I, § 13 (same).

      The State contends that appellant forfeited his complaint about the

excessiveness of his sentence because although he filed a motion for new trial

that raised the excessiveness issue, he failed to present that motion to the trial

court. To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402

S.W.3d 252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300

(Tex. App.—Fort Worth 2013, pet. ref’d). We should not address the merits of an

issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452,

473 (Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at 300.

Preservation of error is a systemic requirement. Gipson v. State, 383 S.W.3d

152, 159 (Tex. Crim. App. 2012).

      Complaints    concerning     the   proportionality of   a   sentence to   the

circumstances of an offense are subject to forfeiture unless they are timely raised

in the trial court. See Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013)


                                          5
(“A sentencing issue may be preserved by objecting at the punishment hearing,

or when the sentence is pronounced.”); Pollock v. State, 405 S.W.3d 396, 405–

06 (Tex. App.—Fort Worth 2013, no pet.) (“Pollock did not object to his sentence

at the time it was imposed nor complain about it in a motion for new trial. We

have held on numerous occasions that this type of claim must be preserved at

the trial court level.”); see also Cisneros v. State, No. 02-06-00103-CR, 2007 WL

80002, at *1 (Tex. App.—Fort Worth Jan. 11, 2007, pet. ref’d) (mem. op., not

designated for publication) (collecting cases). And for purposes of preservation

under rule of appellate procedure 33.1, a motion for new trial raises a sentencing

issue only when the record shows that the motion was presented to the trial

court. See Tex. R. App. P. 21.6; Means v. State, 347 S.W.3d 873, 874 (Tex.

App.—Fort Worth 2011, no pet.); Washington v. State, 271 S.W.3d 755, 756

(Tex. App.—Fort Worth 2008, pet. ref’d) (mem. op.); Thompson v. State, 243

S.W.3d 774, 776 (Tex. App.—Fort Worth 2007, pet. ref’d).

      Presentment requires a defendant to go beyond simply filing the motion for

new trial with the clerk of the trial court; the presentment “must result in actual

notice to the trial court and may be evidenced by the judge’s signature or

notation on a proposed order or by a hearing date set on the docket.” Burrus v.

State, 266 S.W.3d 107, 115 (Tex. App.—Fort Worth 2008, no pet.) (mem. op.). A

mere notation on a docket sheet that a motion for new trial was filed is insufficient

to establish presentment. Id.; Cozzi v. State, 160 S.W.3d 638, 641 n.5 (Tex.

App.—Fort Worth 2005, pet. ref’d); see Washington, 271 S.W.3d at 756 (“The


                                         6
term ‘present’ means the record must show that the movant for a new trial

sustained the burden of actually delivering the motion for new trial to the attention

or actual notice of the trial court.”).

       Here, appellant did not verbally raise any complaint about the

excessiveness of the jury’s punishment decision or the trial court’s resulting

sentence on the record at the end of the trial. And although the clerk’s record

establishes that appellant filed a motion for new trial in which he complained

about his sentence, it does not show that he brought this motion to the attention

of the trial court.   Instead, the clerk’s record contains only an unsigned and

incomplete proposed “ORDER SETTING HEARING” on the motion, an unsigned

and incomplete proposed order on the motion, a certificate of proceedings stating

that a notice of appeal (but not a motion for new trial) had been filed, and a

docket sheet entry that a motion for new trial had been filed. We conclude that

none of these are sufficient to establish presentment.       See Washington, 271

S.W.3d at 756; Burrus, 266 S.W.3d at 115.

       Thus, because rule of appellate procedure 33.1(a) required appellant to

complain about the excessiveness of his sentence to the trial court, because he

had the opportunity to do so, and because the record establishes that he did not

adequately and timely do so, we hold that he forfeited the complaint, and we

overrule his first point. See Tex. R. App. P. 33.1(a).




                                          7
                             Evidentiary Sufficiency

      In his second point, appellant contends that the evidence is “factually

insufficient” to support his conviction “due to a lack of evidence of intoxication.”

In appellant’s discussion relating to factual sufficiency, in which he mainly relies

on a 2000 decision from the court of criminal appeals, 8 he argues that we should

review the evidence in a neutral light and conclude that it was so weak with

respect to his intoxication as to be clearly wrong and manifestly unjust. He asks

only for us to reverse his conviction and to remand this case for a new trial.

      The court of criminal appeals, however, abolished factual sufficiency

review over three years ago. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010); see Howard v. State, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App.

2011). In the interest of justice, we will review the evidence to determine whether

it is sufficient to prove appellant’s intoxication under the Jackson v. Virginia 9

standard, which is the “only standard that [we] should apply in determining

whether the evidence is sufficient to support each element of a criminal offense

that the State is required to prove beyond a reasonable doubt.” Brooks, 323

S.W.3d at 912.

      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


      8
       See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
      9
       443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).


                                         8
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; Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

This standard gives full play to the responsibility of the trier of fact to resolve

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

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011). The

standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor. Winfrey, 393 S.W.3d at 771; Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007).

      Appellant does not contest that he was operating a motor vehicle in a

public place; he contends only that the evidence is insufficient to show that he

was intoxicated while doing so. See Tex. Penal Code Ann. § 49.04(a). Appellant

was intoxicated if he had an alcohol concentration of .08 or more or if because of

drinking alcohol, he lost the normal use of his mental or physical faculties. Id.

§ 49.01(2). Intoxication may be proved by a combination of symptoms that when

taken individually do not necessarily prove intoxication. See Cotton v. State, 686

S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (noting that evidence of intoxication

may include, among other things, bloodshot eyes, odor of alcohol, unsteady

balance, and staggered gait).




                                         9
      Appellant concedes that the State offered “evidence as to intoxication.”

The record confirms appellant’s concession. For example, as explained above,

Obeta testified that while appellant was walking after the police arrived, he was

staggering. Officer Johnson testified that appellant looked dazed and confused

and appeared to have a slow reaction time. Appellant admitted at the scene and

at the jail that he had been drinking alcohol, expressed that he should not have

been driving, and opined that “he was intoxicated . . . or that he had had too

much to drink.” Appellant admitted at the jail that he had drunk several beers

over the course of six or seven hours, including drinking some alcohol shortly

before he crashed into Obeta’s car. He also stated that his drinking alcohol

“probably” contributed to the crash.

      Appellant’s eyes were red and bloodshot, and his breath smelled like

alcohol.   According to Officer Johnson, appellant failed all three of the

standardized field sobriety tests that he took, indicating his intoxication.

      Appellant’s breath samples registered on the Intoxilyzer machine at alcohol

concentrations of .071 and .072.       At trial, Sarah Skiles, a forensic chemist,

testified without objection that based on her training and experience, all people

become intoxicated when they reach a .05 alcohol concentration.                More

specifically, Skiles testified that a person with an alcohol concentration of .071

loses the normal use of mental and physical faculties. Skiles explained that the

introduction of alcohol affects a body’s central nervous system as a depressant,

meaning that alcohol “slows everything down.” She also explained that alcohol is


                                          10
dose dependent, meaning that the more alcohol a person consumes, the greater

it will affect that person. Skiles testified that consuming alcohol affects thinking

skills first, then fine motor skills, and then gross motor skills involving big

muscles.

      In answering hypothetical questions based on given facts that were similar

to the evidence that the jury had heard about appellant’s offense, Skiles opined

that a person who had a .071 alcohol concentration at the time of giving a breath

test could have had an alcohol concentration of .08 to .10 at the time of driving

two hours earlier.

      When the State asked Skiles whether a person sharing appellant’s

characteristics could have been under a .08 alcohol concentration at the time of

driving when the person’s breath measured at a .071 alcohol concentration two

hours later, she said, “There would have had to have been a significant amount

of alcohol still unabsorbed.”   Skiles explained that one way that alcohol can

remain unabsorbed is if a person has food in the stomach. But the record does

not establish that appellant had recently eaten food before his crash with Obeta;

at the jail, appellant stated that he had last eaten food—a shrimp cocktail—at 4

p.m. on the day of the crash.

      We recognize that some evidence raised inferences that the jury could

have weighed against a finding of intoxication. For example, appellant performed




                                        11
well on two field sobriety tests upon arriving at the jail. 10 Also, appellant did not

slur his speech and did not have trouble standing. But the jury was the sole

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.

Ann. art. 38.04 (West 1979); Winfrey, 393 S.W.3d at 768. Thus, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the jury. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We must presume that the jury resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

      Viewing the evidence in the light most favorable to the verdict and

deferring to the jury’s implicit resolution of conflicting inferences in favor of a

finding that appellant was intoxicated, we conclude that a rational jury could have

found beyond a reasonable doubt that appellant was intoxicated while operating

a motor vehicle in a public place.       See Tex. Penal Code Ann. § 49.04(a);

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Tubb v. State, No. 02-08-

00400-CR, 2009 WL 3720166, at *2 (Tex. App.—Fort Worth Nov. 5, 2009, pet.

ref’d) (mem. op., not designated for publication) (holding that evidence was

sufficient to prove a defendant’s intoxication when it revealed that the defendant

smelled of alcohol, had watery and bloodshot eyes, admitted to drinking alcohol,


      10
        Officer Johnson opined that a better second performance on field
sobriety tests is common because “the gravity of what has taken place sets in” to
arrestees.


                                         12
and failed standardized field sobriety tests). We therefore hold that the evidence

is sufficient to support appellant’s conviction and overrule his second point.

                                    Conclusion

      Having overruled appellant’s points, we affirm the trial court’s judgment.


                                                    /s/ Terrie Livingston

                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: February 20, 2014




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