                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00010-CR



      EMMA ANGELITA HENDERSON, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                   Hunt County, Texas
              Trial Court No. CR1200630




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                               MEMORANDUM OPINION
       Emma Angelita Henderson was convicted by a jury of a second driving while intoxicated

(DWI) offense, resulting in her being sentenced to serve 365 days’ confinement in the Hunt

County Jail and being ordered to pay a $2,000.00 fine.

       Driving while intoxicated is a Class B misdemeanor with a maximum term of
       confinement for 180 days. But under Penal Code § 49.09, it is a Class A
       misdemeanor, with a minimum term of confinement of 30 days, if it is shown on
       the trial of the offense that the person has previously been convicted of an
       intoxication-related offense. In that situation, the maximum confinement is one
       year. On the other hand, Penal Code § 12.43(b) provides that if a defendant
       convicted of a Class B misdemeanor has previously been convicted of a Class A
       or Class B misdemeanor or any felony, he is to be punished by confinement in jail
       for not more than 180 days or less than 30 days. So the Penal Code includes two
       separate statutes providing for potentially increased punishment in the case of a
       person’s second offense of driving while intoxicated.
State v. Morgan, 160 S.W.3d 1, 4 (Tex. Crim. App. 2004) (footnotes omitted).
       Henderson argues in her sole point of error on appeal that the evidence is legally

insufficient to support her conviction. We disagree and affirm the trial court’s judgment.

Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found the essential elements

of driving while intoxicated beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on

the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring).



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We examine legal sufficiency under the direction of the Brooks opinion, while giving deference

to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

Definition of the Charged Offense

        Apropos in this case, under Texas law, a person is guilty of DWI if the person operates a

motor vehicle in a public place while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West

Supp. 2012). Henderson (who does not dispute the existence of a previous DWI conviction)

contends only that the evidence was insufficient to prove the intoxication element of the offense

for which she was charged.       Intoxication by alcohol may be proved by either proof of

impairment (i.e., loss of the normal use of mental or physical faculties), or proof of alcohol

concentration of 0.08 percent or more (i.e., intoxication “per se”). TEX. PENAL CODE ANN.

§ 49.01(2) (West 2011); Kirsch v. State, 306 S.W.3d 738, 743 (Tex. 2010).




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Point on Appeal

       Henderson argues that the evidence is legally insufficient because “[a]t no point was any

witness able to detect the odor of alcohol on the defendant until after she entered and then exited

[a] home,” no field-sobriety test was conducted, no blood-alcohol level was introduced, and there

was “no way for [the arresting officer] to know if she had a natural slur.” We examine whether

the evidence is legally sufficient to show proof of impairment.

Evidence at Trial

       Nathan McClain testified that after passing his destination, he turned down Dalton Street

to “make a three-point turn about” in his automobile when a van following him lightly bumped

his vehicle from behind. McClain related that the van (which he stated was then being driven by

Henderson) struck his car again “on my front end” as he attempted to negotiate the three-point

turn. According to McClain, Henderson appeared “like somebody who was under the influence

of alcohol” and that she was yelling, cursing, and exhibiting slurred speech.

       Kimberly Smith, a homeowner on Dalton Street, testified that “the van would charge at

[McClain], then back up very rapidly and charge at him again. And at one point, it looked as if

the van was actually pushing his vehicle backward towards the dead end of the road.”

Henderson, operating the van, was “honking her horn incessantly.”           Kimberly awoke her

husband, Michael Smith, a retired police chief, due to the “commotion going on out on the

street.” Michael testified,

       We were at the corner of Walnut and Dalton. The van was heading towards our
       arbor and moving back around in the street. There was a passenger car that was
       rapidly moving. The van was driving aggressively towards the car. There was --

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       with all this commotion going on and our private property being nearby, where
       they could knock it over or tear it up, I picked up the phone and called 911.

Michael said that the van “backed into a gas meter . . . on the other side of” Dalton Street after he

placed the emergency 9-1-1 call.

       Kimberly recalled, “[Y]ou could hear the van strike something metal. And the only thing

that was there was the gas meter.” After the van struck the gas meter, “it pulled forward and hit

[Kimberly’s] arbor.” Kimberly testified that Henderson leaned “completely out the window and

starts screaming at me, ‘Should I hit him again? Do you think I ought to hit him? Do you think I

ought to hit him again?’” and described Henderson’s cursing as being “[n]onstop.” Kimberly,

who had seen Henderson “when she’s not drunk,” told Henderson that “she was drunk and that

she needed to go sleep it off.” Henderson “pulled into [the Smiths’] neighbor’s driveway” and

“went into their home.”

       Very shortly thereafter, police officers arrived on the scene and made contact with

Henderson at the Smiths’ neighbor’s home. Because Henderson “was physically hitting at the

officers with her hands and her feet,” the officers were forced to “restrain her and handcuff her.”

Michael heard Henderson “yelling police brutality” and witnessed her “throw herself to the

ground.” Michael believed Henderson could have been intoxicated due to her “erratic driving,”

“confrontational attitude,” and her action of “screaming at the top of her lungs” when placed in

the patrol car. McClain testified that Henderson spat at the officers.

       Responding police officer, Joseph Ryan Jones, testified he arrived on the scene “[j]ust a

couple minutes” after he “got a call of an accident” and saw Henderson “running from the [van]

into the house.” Jones testified Henderson exhibited slurred speech, bloodshot eyes, and “a
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strong odor of alcohol coming from [her] breath.” She asked Jones several times not to shoot

her. Jones described Henderson as “belligerent for the entire encounter.” “[S]he kept putting her

hands in her pockets” despite being asked repeatedly not to do so, “wasn’t cooperating, wouldn’t

walk, [and] was kicking at [officers].” Jones was forced to handcuff Henderson for his own

protection and concluded that she was not “cooperative enough for us to do any kind of field

sobriety test.”

           Henderson “continued to scream and cuss” at Jones as he informed her that she was being

arrested for DWI and then read her the required Miranda 1 warnings. Henderson did not consent

to give a blood specimen. Based on his interactions with Henderson, Jones concluded that

Henderson was intoxicated and had lost the use of mental faculties. A videotape recording of the

arrest, which depicted Henderson’s slurred speech and belligerent behavior toward the police

officers, was played for the jury.

           Police Corporal Aaron Huddleston also responded to the call and testified that he

believed that Henderson “was intoxicated [because of] the way she was speaking, slurring her

words, and her eyes were kind of glassed over, bloodshot.” Huddleston testified she was

“unsteady on her feet” and “became very argumentative and combative.” He “could also smell

the smell of an alcoholic beverage coming from her breath and from her person.” Huddleston

further testified that Henderson “was impaired” and had lost the use of her physical faculties.

           In summary of the evidence, (1) each witness at trial testified that Henderson appeared to

be intoxicated and mentioned her belligerence; (2) the car Henderson piloted struck McClain’s

1
    See Miranda v. Arizona, 384 U.S. 436 (1966).

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vehicle, the gas meter, and the Smith’s arbor; (3) Henderson then parked her van in the driveway

of a nearby home and the arriving officers saw Henderson walk toward the house and enter it;

(4) on their initial contact with Henderson (which took place very shortly after their arrival on

the scene), the officers immediately smelled alcohol on her breath, and they observed that her

speech was slurred, her eyes were bloodshot, she was unsteady on her feet, and she was

extremely belligerent toward them. Jones testified that Henderson had lost the use of her mental

faculties, and Huddleston testified that he had concluded that she had lost the use of her physical

faculties. The jury was able to watch a video recording of much of the encounter between the

law enforcement officers and Henderson.

Conclusion

       We conclude that from these basic facts, it was reasonable for a rational jury to find that

Henderson was driving while intoxicated. Because the evidence is legally sufficient to support

Henderson’s conviction, we overrule Henderson’s sole point of error.

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:       October 22, 2013
Date Decided:         October 23, 2013

Do Not Publish




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