Hartman v. State

Page 829

198 S.W.3d 829

Angelique Tiffany HARTMAN, Appellant, v. The STATE of Texas, Appellee.

No. 13-05-384-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 3, 2006.

COPYRIGHT MATERIAL OMITTED

Bill B. Caraway, Hallettsville, for appellant.

Christina Hartmann, Asst. Dist. Atty., Vicki Pattillo, Dist. Atty., for state.

Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

A jury convicted appellant, Angelique Tiffany Hartman, of the felony offense of driving while intoxicated.¹ The trial court assessed punishment at ten years' imprisonment, imposed a $1,000.00 fine, and ordered the sentence suspended to place Hartman on community supervision for a period of five years. We affirm.

I. RELEVANT FACTS

At approximately 12:30 a.m. on November 30, 2003, Trooper Phillip Gonzales stopped Hartman after radar detected she was driving eighty-three miles per hour on an interstate highway. Trooper Gonzales approached Hartman's vehicle and detected a strong odor of alcohol emanating from Hartman and her vehicle. He observed a nearly-empty bottle of vodka on the front seat of her vehicle.² Hartman admitted to Trooper Gonzales that she last consumed a few drinks, "something stronger than beer," at about 10:30 p.m. After Hartman failed the standard field sobriety tests, Trooper Gonzales arrested her for driving while intoxicated. At trial, Hartman testified she was not intoxicated. The videotape of the stop including the field sobriety tests was admitted in evidence.

II. POINTS OF ERROR

By her first, second, and fifth points of error, Hartman asserts that the trial court erred in admitting (1) evidence of the improperly administered field sobriety tests, (2) testimony correlating the HGN results with a specific blood-alcohol content ("BAC"), and (3) proof of the two prior DWI convictions. By her third point of error, she asserts that the trial court erred in refusing to take judicial notice of the NHTSA Manual. In her fourth point of error, she asserts that the evidence was legally and factually insufficient.

III. SUFFICIENCY OF THE EVIDENCE

By her fourth point of error, Hartman asserts the evidence is legally and factually insufficient to sustain the conviction. The State responds that the essential elements of the offense were proven beyond a reasonable doubt. Hartman does not challenge the jurisdictional element as to the two prior driving-while-intoxicated convictions.³ The record demonstrates that she stipulated to the two prior intoxication-related convictions.

A. Standard of Review

1. Legal Sufficiency

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This standard is meant to give full play to the jury's responsibility to fairly draw reasonable inferences from basic facts to ultimate facts. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim.App.2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App.2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994) (per curiam)). The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 1(a) (Vernon Supp.2005) (verdict must be general); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991) (en banc).

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.⁴ Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Swartz v. State, 61 S.W.3d 781, 786 (Tex.App.-Corpus Christi 2001, pet. ref'd). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. Malik, 953 S.W.2d at 240; Swartz, 61 S.W.3d at 785. We then determine if 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. 2781.

2. Factual Sufficiency

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim.App.2005) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000)); see Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App.2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)). In conducting our review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. Id.

There are two ways in which the evidence may be insufficient. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim. App.2004). First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. at 485. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id.

We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim. App.1997) (en banc). This Court measures the factual sufficiency of the evidence against the hypothetically correct jury charge. See Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd).

B. The Elements of Felony Driving While Intoxicated

A person commits the offense of driving while intoxicated if he or she operates a motor vehicle in a public place without the normal use of mental or physical faculties due to the introduction of alcohol or other substances into the body. TEX. PEN. CODE ANN. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. Threet v. State, 157 Tex.Crim. 497, 250 S.W.2d 200, 200 (1952).

If the State can prove a defendant had "previously been convicted two times of an offense" related to operating a motor vehicle while intoxicated, the driving while intoxicated offense becomes a felony of the third degree. See TEX. PEN. CODE ANN. § 49.09(b) (Vernon Supp.2005). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, or having an alcohol concentration of 0.08 or more. See TEX. PEN. CODE ANN. § 49.01(2)(A), (B) (Vernon 2003). Thus, a hypothetically correct jury charge as limited by the indictment would authorize the jury to convict if it determined from the record evidence that Hartman (1) operated a motor vehicle, (2) in a public place, (3) while intoxicated, (4) due to the introduction of alcohol into her body, and (5) she was previously convicted of two driving-while-intoxicated offenses. Each of these elements must be proved to sustain a conviction.⁵ See TEX. PEN. CODE ANN. § 2.01 (Vernon 2003); Malik, 953 S.W.2d at 240; Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001).

The jury may consider the defendant's refusal to submit to a breath test as evidence of driving while intoxicated. See Bright v. State, 865 S.W.2d 135, 137 (Tex. App.-Corpus Christi 1993, pet. ref'd) (citing Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd)); see also TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999) (evidence that defendant refused breath test may be introduced into evidence at trial).

C. Legal Sufficiency Analysis

Hartman's argument on appeal focuses on the claimed unreliability of the results of the standardized field sobriety tests. However, the testimony of an officer that a person is intoxicated provides sufficient evidence to establish the element of intoxication. Gruber v. State, 812 S.W.2d 368, 370 (Tex.App.-Corpus Christi 1991, pet. ref'd) (citing Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App.1979) and Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App.1977)); Little v. State, 853 S.W.2d 179, 183 (Tex.App.-Corpus Christi 1993, no pet.) (the uncorroborated testimony of an arresting officer alone is sufficient to establish intoxication); Hargrove v. State, 774 S.W.2d 771, 772 (Tex.App.-Corpus Christi 1989, pet. ref'd) (testimony of officers sufficient to establish intoxication). Even so, for purposes of our legal sufficiency analysis, we review the evidence in the light most favorable to the verdict. Escamilla, 143 S.W.3d at 817 (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781).

Hartman testified in her own defense. Hartman admitted that she had her last drink at 10:30 p.m., prior to her arrest. She and a friend finished a bottle...