Jackie Farley v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00096-CR
JACKIE FARLEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2013-400,142, Honorable William R. Eichman II, Presiding
September 28, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Jackie Farley, appeals from his conviction for Driving While Intoxicated
(DWI). As expressed through his sole issue, he believes the evidence is legally
insufficient to support the jury’s finding that he had lost the normal use of his mental or
physical faculties while operating a motor vehicle. That is, “evidence of his intoxication
was, on the whole, relatively weak.” This was purportedly so because it generally
consisted of “one out of a possible twenty-four cues of intoxication during the driving
phase of [the] investigation, the presence of the legal odor of alcohol, a traffic infraction
characterized as ‘common’ and subjective FST [field sobriety tasks] are why [appellant]
was arrested and ultimately how he was convicted.” (Emphasis in original). So, in his
view, the State did not prove he lacked the normal use of his mental or physical
faculties due to the introduction of alcohol. We affirm.
Standard of Review
Claims of legal insufficiency are reviewed under the standard discussed in Dobbs
v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Per that standard, 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. Id. In making that determination, we are to remember that not only is
circumstantial evidence as probative as direct evidence in establishing guilt, but also
that circumstantial evidence alone may be enough to prove culpability. Id. So too must
the court recognize that the jury or factfinder is the sole judge of credibility and weight to
be attached to the testimony of witnesses, and where the record supports conflicting
inferences, we both presume that the jury resolved the conflicts in favor of the verdict
and defer to that determination. Id. Finally, each bit of evidence upon which guilt is
premised “need not point directly and independently to the guilt of the appellant, as long
as the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Id.
Elements of the Crime
Next, to have secured a conviction, the State would have had to prove that
appellant was intoxicated while operating a motor vehicle in a public place. TEX. PENAL
CODE ANN. § 49.04(a) (West Supp. 2014). Intoxication can be established via one of
two ways. For instance, one can be shown to be intoxicated if he did not have “the
normal use of mental or physical faculties by reason of the introduction of alcohol, a
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controlled substance, a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body.” TEX. PENAL CODE ANN. § 49.01(2)(A)
(West 2011). Or, he may be intoxicated if his blood alcohol concentration is “0.08 or
more.” Id. § 49.01(2)(B). Since appellant’s blood alcohol concentration was not
measured, the former way of proving intoxication was utilized at bar.
Application
The appellate record before us contains the following evidence. Texas
Department of Public Safety Trooper Corey Kernell (Kernell) testified that he was on
duty and sitting at an intersection when he observed a vehicle traveling at a high rate of
speed about to run a stop sign. The driver “applied the brakes and slid partially through
the intersection, stopping past the white line.” This led the trooper to stop the vehicle.
At that point, he 1) encountered appellant driving the car and 2) noticed that appellant “.
. . had a strong odor of alcoholic beverage coming from his breath . . . red, glassy,
bloodshot eyes and . . . slurred speech.” These circumstances caused the trooper to
subject appellant to field sobriety testing. As appellant exited the car to undergo the
testing, appellant had to use the vehicle for support or balance, according to the trooper.
While administering the test, the trooper observed that appellant 1) was slow to
respond to his directions, 2) had to be told several times to move back towards the
officer’s vehicle, 3) exhibited six clues purportedly indicative of intoxication when
subjected to the Horizontal Gaze Nystagmus (HGN) part of the test, 4) exhibited seven
of eight clues indicative of intoxication when he performed the “walk-and-turn” test,
those clues being his use of his arms for balance, stepping off the line, missing heel to
toe juxtaposition while taking his steps, taking an improper amount of steps, stopping
while taking steps and making an improper turn, 5) exhibited four clues indicative of
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intoxication when asked to perform the one-leg stand, which clues consisted of swaying,
using arms for balance, hopping, and placing his raised foot back on the ground to gain
balance, and 6) failed to recite the alphabet when asked. The non-HGN testing was
captured on a video, which video was subsequently admitted into evidence at trial. The
substance captured on the video confirmed, in many respects, the trooper’s description
of appellant’s performance on the tests. Also captured on the video is appellant’s
admission that he had ingested two or three drinks.
Evidence of intoxication includes such indicia as 1) slurred speech, 2) bloodshot
eyes, 3) the odor of alcohol on the person, 4) the odor of alcohol on the breath, 5)
unsteady balance, and 6) a staggered gait. Ubesie v. State, 379 S.W.3d 371, 376 (Tex.
App.—Amarillo 2012 no pet.); Harris v. State, 204 S.W.3d 19, 25 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref'd). Such indicia were present here. So too had appellant
come to an abrupt halt at the stop sign and been drinking (by his own admission.) This
evidence provided basis upon which a rational trier of fact could have found, beyond
reasonable doubt, that appellant had lost the normal use of mental or physical faculties
by reason of the introduction of alcohol. And while other evidence may have supported
a different determination, the jury was free to discount that evidence. Again, the task of
resolving evidentiary conflicts lay with it, and we must defer to its decision.
Appellant’s sole issue is overruled, and the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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