                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-367-CR


CHRISTOPHER ANTHONY MILLER                                      APPELLANT

                                              V.

THE STATE OF TEXAS                                                   STATE

                                          ------------

     FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

                                          ------------



                           MEMORANDUM OPINION 1


                                          ------------

      In one issue, Appellant Christopher Anthony Miller appeals from his

conviction for driving while intoxicated (DWI), arguing that the evidence is

factually insufficient to sustain the conviction. We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                       I. Factual and Procedural History

      In the early hours of March 3, 2007, Grapevine Police Officer Greg Ross

stopped Miller on State Highway 121 for speeding and erratic driving. As he

walked up to Miller’s car, Officer Ross smelled a strong odor of alcohol

emanating from the vehicle. He also noticed that Miller had heavy and watery

eyes and that his speech was slurred. When Officer Ross asked where Miller

had come from, Miller responded, “Chaucer’s in Addison,” a bar, and that he

had consumed “a beer or two.” After taking several minutes to find his license

and proof of insurance—even providing Officer Ross a copy of a Firestone

receipt—Miller eventually handed over the actual proof of insurance. Officer

Ross administered three standardized field sobriety tests: the Horizontal Gaze

Nystagmus (“HGN”), the walk-and-turn test, and the one-leg stand test. After

Miller had failed all three tests, Officer Ross placed Miller under arrest for DWI

and took him to the Grapevine jail, where Miller refused to give a breath sample.

      Miller was charged with DWI and entered a plea of not guilty.            On

September 12, 2007, a jury found Miller guilty. The trial court sentenced Miller

to 120 days in the Tarrant County jail. The trial court, however, suspended

Miller’s sentence to time served, placed him on a two-year probation, and

ordered him to pay a $900 fine, plus court costs. This appeal followed.




                                        2
                             II. Factual Sufficiency

      Miller complains that “[t]he key piece of evidence presented in this case

is the videotape” of his sobriety test performance, and he claims that the

videotape does not support the arresting officer’s testimony that Miller “flunked

the sobriety tests.” Therefore, he asserts, “the record cannot support a finding

that [Miller] lost the normal use of his physical faculties[,]” and the evidence is

insufficient to support his conviction.

A. Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great




                                          3
weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.




                                        4
B. Analysis

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

motor vehicle in a public place.” T EX. P ENAL C ODE A NN. § 49.04(a) (Vernon

2003). A person is intoxicated if he does “not have the normal use of mental

or physical faculties by reason of introduction of alcohol . . . or any other

substance into the body[.]” Id. § 49.01(2)(A) (Vernon 2003). Appellant’s sole

contention is that he was not intoxicated on the morning of March 3, 2007;

therefore, we will not address the other elements of DWI.

      Miller argues that the evidence presented at trial—specifically the

videotape of the field sobriety tests—is factually insufficient to support his

conviction.   According to Miller, the video only showed that he was

uncoordinated and not that he was intoxicated. However, the record shows

that Officer Ross did not arrest Miller based solely upon Miller’s field sobriety

tests. First, Officer Ross testified that the videotape did not show everything

he had observed, e.g., the odor of alcohol, Miller’s eyes during the horizontal

gaze nystagmus test, and the wateriness and heaviness of Miller’s eyes.

Second, the jury could assess Officer Ross’s testimony with the videotape,

which was published to the jury. Namely, the jury saw on the videotape that

Miller drove erratically, swerved around a slower car, and came to a stop in the

center median of State Highway 121, perpendicular to the freeway. Also, the

                                       5
jury saw Miller handing Officer Ross a piece of paper, later determined to be a

Firestone receipt instead of his proof of insurance. Furthermore, the jury saw

Miller perform the standardized field sobriety tests and could determine how

well he performed. During the walk-and-turn test, for example, Miller stepped

off the line, turned incorrectly, missed heel-to-toe nine times, and used his arms

for balance. Additionally, during the one-leg stand test, Miller swayed and used

his arms for balance.

      Giving due deference to the jury’s determinations of Officer Ross’s

demeanor and credibility, and its evaluation of the videotape, we cannot say

that the evidence of Miller’s intoxication is so weak that the verdict is clearly

wrong and manifestly unjust.      See Watson, 204 S.W.3d at 414–15, 417;

Johnson, 23 S.W.3d at 11.       Thus, we hold that the evidence is factually

sufficient to support Miller’s conviction. We overrule Miller’s sole point.




                                        6
                                III. Conclusion

      Having overruled Miller’s sole point, we affirm the trial court’s judgment.




                                                  PER CURIAM

PANEL: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008




                                       7
