Opinion filed August 6, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-13-00238-CR
                                    __________

              JASON VERNOY KIRKPATRICK, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the County Court at Law
                              Ector County, Texas
                         Trial Court Cause No. 12-2759

                       MEMORANDUM OPINION
       Jason Vernoy Kirkpatrick appeals his conviction for the offense of driving
while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014). The
trial court sentenced Appellant to confinement in the Ector County Jail for a term of
180 days. The trial court also suspended his driver’s license for 180 days and
assessed court costs against him. In one issue on appeal, Appellant challenges the
sufficiency of the evidence to support his conviction. We affirm.
                                  Background Facts
      Officer Jorge Amezola of the Odessa Police Department testified that at 11:00
p.m. on July 31, 2012, he saw a man on a moped run a stop sign. Officer Amezola
turned around and followed the moped. Officer Amezola then saw the moped driver
run a red light. He stopped the moped driver for the traffic violations. Appellant
was identified as the man driving the moped.
      Officer Amezola approached Appellant and observed that Appellant “had
bloodshot eyes and a strong odor of alcohol.” Officer Amezola asked Appellant if
he would perform any field sobriety tests.        Appellant consented to the tests.
Appellant first performed the horizontal gaze nystagmus (HGN) test. Officer
Amezola testified that Appellant showed six of six possible clues for intoxication on
the HGN test. Appellant next performed the walk-and-turn field sobriety test.
Officer Amezola observed that Appellant showed five out of eight possible clues for
intoxication. Finally, Appellant performed the one-leg stand field sobriety test.
Officer Amezola testified that Appellant also failed this test.
      After the field sobriety tests, Officer Amezola determined that Appellant was
too intoxicated to drive. After receiving the required statutory warning, Appellant
refused Officer Amezola’s request to submit a breath specimen for testing. See TEX.
TRANSP. CODE ANN. § 724.015 (West Supp. 2014). Officer Amezola then arrested
Appellant for driving while intoxicated.
                                       Analysis
      In his sole issue, Appellant challenges the sufficiency of the evidence to
support his conviction. We review a sufficiency of the evidence issue under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
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whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In
conducting a sufficiency review, we defer to the factfinder’s role as the sole judge
of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at
778. When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and defer to that determination.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      A person commits the offense of driving while intoxicated “if the person is
intoxicated while operating a motor vehicle in a public place.” PENAL § 49.04(a).
Appellant only attacks the element of intoxication. Under the Texas DWI statute,
intoxication may be proven in either of two ways: (1) loss of normal use of mental
or physical faculties or (2) alcohol concentration in the blood, breath, or urine of
0.08 or more. Id. PENAL § 49.01(2) (West 2011); Kirsch v. State, 306 S.W.3d 738,
743 (Tex. Crim. App. 2010). The first definition is the “impairment” theory, while
the second is the “per se” theory. Kirsch, 306 S.W.3d at 743. We are only concerned
with the impairment theory in this appeal because Appellant did not provide a
specimen for testing. For purposes of the DWI statute, proving an exact intoxicant
is not an element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim.
App. 2004). Circumstantial evidence may prove that a person has lost the normal
use of his mental or physical faculties by reason of introduction of a controlled
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substance or drug into his body. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex.
Crim. App. 1973).
      Appellant contends that the State’s evidence was deficient in a number of
respects. He contends that there was no evidence from a third party or an admission
by Appellant indicating that that had consumed any alcohol. Appellant argues that
“the State’s entire case boiled down to Officer Amezola’s testimony.” He faults the
testimony given by Officer Amezola based on his contention that the officer was
inexperienced and that he had a predisposition in favor of prosecuting individuals
for DWI. He also faults the officer for failing to preserve the video recording of
Appellant’s performance on the field sobriety tests.
      Officer Amezola testified that he saw Appellant run a stop sign.
Officer Amezola followed Appellant and then saw him run a red light.
Officer Amezola stopped Appellant and immediately observed that Appellant “had
bloodshot eyes and a strong odor of alcohol beverage coming from his person.”
Appellant then performed three field sobriety tests. Despite Appellant’s contention
that Officer Amezola was inexperienced, the officer testified that he had investigated
“many” DWI cases. He also testified that he was certified to perform all three of the
field sobriety tests that he administered.
      Officer Amezola testified that Appellant failed all three tests. Based on his
observations, Officer Amezola concluded that Appellant was intoxicated while
operating a motor vehicle. Officer Amezola’s testimony is probative evidence of
intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.]
1979) (as a general rule, the testimony of an officer that a person is intoxicated
provides sufficient evidence to establish the element of intoxication for the offense
of DWI); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,
pet. ref’d) (same); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref’d) (same).
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      The applicable standard of review requires us to view the evidence in the light
most favorable to the verdict. Clayton, 235 S.W.3d at 778. We presume that the
factfinder resolved Appellant’s perceived deficiencies in the evidence in favor of the
verdict, and we defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. We conclude that the evidence is sufficient to support Appellant’s
conviction because a rational trier of fact could have found the elements of the
offense beyond a reasonable doubt based upon Officer Amezola’s testimony. We
overrule Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 6, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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