AFFIRMED; Opinion Filed June 30, 2014.




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                       No. 05-13-00304-CR

                                   AARON GREGORY MOSEMAN, Appellant

                                                                     V.

                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 199th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 199-81079-2012

                                          MEMORANDUM OPINION
                                    Before Justices FitzGerald, Lang, and Fillmore
                                               Opinion by Justice Lang

          This is an appeal from a bench trial. In two issues, Aaron Moseman asserts the evidence

is insufficient to support his conviction for felony driving while intoxicated (DWI). 1 We affirm

the trial court’s judgment.

                                 I. FACTUAL AND PROCEDURAL CONTEXT

          Plano police officer Rob Shelton was on patrol in the early morning hours of November

11, 2011 when he came across a one-car “rollover accident.” Shelton stopped and approached a

group of people standing near the car. Moseman was in the group and appeared to have a “fresh

     1
        As relief, Moseman asks the Court to set aside the judgment and acquit him, “make a determination of guilt of any lesser included
offense,” or modify the judgment . . . and remove or delete or order removed or deleted the finding in regards to one of the enhancement
allegations used.” Moseman, however, raises and briefs only the sufficiency issues. See TEX. R. APP. P. 38.1(f),(i). Accordingly, we limit our
review to those issues. See State v. Mason, 980 S.W.2d 635, 641 n.3 (Tex. Crim. App. 1998) (argument unsupported by authority not preserved
for appellate review).
cut” on his hand and wrist. Shelton asked Moseman if he had been driving, and Moseman

replied that he had and the accident had just happened. After Shelton established no one else had

been involved in or witnessed the accident, the others in the group left. Shelton asked Moseman

for identification and, noticing Moseman had bloodshot eyes, “swaying stance,” slurred speech,

and a “very strong odor of alcoholic beverage on or about his person,” asked Moseman if he had

been drinking. Moseman initially denied he had, but after Shelton commented he could smell

alcohol on Moseman, Moseman admitted he had a beer an hour earlier at a restaurant about five

miles away and another beer around 7:00 p.m. at a different location. Moseman also admitted he

had two prior DWIs. Concerned because Moseman had been in a car that “flipped over,”

Shelton called the paramedics. Moseman was taken to a nearby hospital for an evaluation. Test

results there revealed a blood alcohol concentration (BAC) level of .15, nearly twice the legal

limit. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011). Moseman was arrested and

charged with felony DWI.

       At trial, Shelton testified that when he arrived at the scene the car was not running, but

the “lights were on.” Shelton recalled “there was a couple of cars pulled over” and a “male and

female” standing “around,” but they did not “look[] like or state[] they were involved in the

accident.” Shelton administered the horizontal gaze nystagmus (HGN) test on Moseman while

waiting on the paramedics and obtained six out of six clues. Shelton did not administer any other

field sobriety tests, but based on the HGN test results and Moseman’s speech and appearance,

believed Moseman was intoxicated from drinking alcohol. Asked to describe the road where the

accident occurred, Shelton stated it was “straight and level” and, at the time of the accident, had

little traffic. Shelton also stated he did not see anything on the road that could have caused the

accident.   On cross-examination, Shelton admitted he did not know what time the accident




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occurred or how long Moseman had been on the side of the road. Shelton stated, however, that

to his knowledge, the accident had not yet been reported when he arrived at the scene.

       Shelton’s car was equipped with an in-car video camera, and the recording of the stop

was admitted into evidence. Also admitted into evidence was the car’s title and registration.

These documents reflected the car was registered to Gregory A. Moseman and Jacquelyn J.

Moseman, whose address as listed on the documents matched Moseman’s home address.

       Moseman did not testify and did not call any witnesses.

       Concluding Moseman was driving at the time of the accident “based upon not only his

statement and his proximity to the [car] but also the injuries he was suffering from at the time,”

the trial court found Moseman guilty and subsequently sentenced him to four years in prison.

                           II. SUFFICIENCY OF THE EVIDENCE

       Moseman contends the evidence is legally insufficient to support the conclusions that he

was driving the car and was intoxicated at the time of driving. Moseman asserts his admission

that he was driving was alone insufficient and the evidence that he had a fresh cut on his wrist

and that the car belonged to Gregory and Jacquelyn Moseman showed that he “could have been

involved in [the] accident” but not that he was driving. Moseman further asserts that the State

offered no evidence of his BAC at the time he was driving and made “no attempt to establish any

retrograde extrapolation of the BAC.”

                                      A. Standard of Review

       A legal sufficiency review entails a review of all the evidence in the light most favorable

to the verdict for a determination of whether, based on the evidence and reasonable inferences, a

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

doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). Under this standard,

circumstantial evidence is as probative as direct evidence and, alone can be sufficient to establish

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guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In assessing the sufficiency of

the evidence, the reviewing court gives deference to the trier of fact’s resolution of any conflicts

in testimony, weight of the evidence, and inferences drawn.         See id.   (quoting Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979)).

                                        B. Applicable Law

       A person commits the offense of DWI “if the person is intoxicated while operating a

motor vehicle in a public place.” If the person has previously been convicted twice of any

offense relating to the operating of a motor vehicle while intoxicated, the offense is a third

degree felony. See id. § 49.09(b)(2) (West Supp. 2013).

                                  C. Application of Law to Facts

       While Moseman correctly asserts in his first issue that his confession alone was

insufficient to show he was driving, see Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App.

2002), other evidence was admitted suggesting he was driving.             That evidence included

Moseman’s presence near the car, the fresh cut to his wrist, the car’s title and registration

reflecting the owners shared Moseman’s last name and lived at the same address, and the denial,

and subsequent departure, by everyone else at the scene that they had been involved in the

accident. Although Moseman contends the cut to his wrist and the car’s registration show only

that he “could have been involved in the accident,” we conclude that evidence, combined with

the rest of the evidence, corroborated his admission that he was driving and was sufficient to

prove that element. See, e.g., Turner v. State, 877 S.W.2d 513, 515-16 (Tex. App.-–Fort Worth

1994, no pet.) (evidence that appellant was found standing next to car within minutes of city

power outage caused by damage to transformers in car’s path, steam was spewing from car

indicating accident had just happened, and no other possible drivers seen in area sufficient to

corroborate appellant’s admission he drove car); Folk v. State, 797 S.W.2d 141, 144 (Tex. App.-

                                                –4–
–Austin 1990, pet. ref’d) (evidence that car was registered to person with whom appellant lived

sufficient to corroborate appellant’s admission he drove car). Viewing the evidence in the light

most favorable to the verdict, we conclude the trial court could have found beyond a reasonable

doubt that Moseman was driving. We resolve Moseman’s first issue against him.

       Respecting the element of intoxication, evidence presented included Moseman’s

admission he had been drinking and had a beer about an hour before the accident at a restaurant

five miles from the scene; Moseman’s admission that the accident had just happened; Shelton’s

testimony that the accident had not yet been reported when he arrived at the scene; Shelton’s

testimony that Moseman displayed six out of six clues on the HGN test, had bloodshot eyes,

“swaying stance,” slurred speech, and a “very strong odor” of alcohol on him; Shelton’s

testimony that the road where the accident occurred was “straight and level,” had little traffic,

and was clear of any object that could have caused the accident; and, Moseman’s BAC level of

.15 shortly after he arrived at the hospital. From this evidence, we conclude the trial court could

have inferred Moseman was intoxicated at the time of driving.        See Kuciemba v. State, 310

S.W.3d 460, 462 (Tex. Crim. App. 2010) (evidence of intoxication at scene of one-car accident

with inanimate object and high-blood alcohol level found in a sample taken at the scene

sufficient to support inference either that appellant was recently involved in accident or that he

had been intoxicated “for quite a while”); Guess v. State, 419 S.W.3d 361, 366 (Tex. App.-–

Tyler 2010, pet. ref’d) (evidence that hood of car was warm when officer arrived, appellant told

trooper he had been on side of road for hour, and evidence appellant was intoxicated when

trooper arrived sufficient to prove intoxication at time of driving); Ubesie v. State, 379 S.W.3d

371, 377-78 (Tex. App.-–Amarillo 2012, no pet.) (evidence that appellant was driving

approximately twenty-five minutes prior to encounter with officer who found appellant confused,

stumbling, slurring his speech, “behaving in a bizarre manner,” and “barely” able to keep his

                                               –5–
eyes open sufficient to establish appellant was intoxicated while driving); Zavala v. State, 89

S.W.3d 134, 139-40 (Tex. App.--Corpus Christi 2002, no pet.) (evidence that appellant had last

drink no later than 11:30 p.m., accident occurred before 3:40 a.m. when police dispatched to

scene, and appellant intoxicated at time of arrest sufficient to show appellant intoxicated at time

of driving).

       Although Moseman asserts in his second issue that the State offered no evidence of his

BAC level at the time of his driving and made “no attempt to establish any retrograde

extrapolation of the BAC,” the State was not required to do either. Circumstantial evidence of

“erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words,

inability to perform field sobriety tests or follow directions, bloodshot eyes, [and] any

admissions by the defendant concerning what, when, and how much he had been drinking” raise

an inference the defendant was intoxicated at the time of driving and is sufficient to support a

DWI conviction. See Kirsch v. State, 306 S.W.3d 738, 745-46 (Tex. Crim. App. 2010).

Moseman’s second issue is also resolved against him.

                                      III. CONCLUSION

       Having resolved Moseman’s two issues against him, we affirm the trial court’s judgment.




                                                     DOUGLAS S. LANG
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
130304F.U05




                                               –6–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

AARON GREGORY MOSEMAN,                                On Appeal from the 199th Judicial District
Appellant                                             Court, Collin County, Texas
                                                      Trial Court Cause No. 199-81079-2012.
No. 05-13-00304-CR         V.                         Opinion delivered by Justice Lang. Justices
                                                      FitzGerald and Fillmore participating.
STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered this 30th day of June, 2014.




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