Ronnie Lamounte Moss v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00133-CR
RONNIE LAMOUNTE MOSS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1410895
----------
MEMORANDUM OPINION1
----------
Ronnie Lamounte Ross challenges his misdemeanor driving while
intoxicated conviction. Tex. Penal Code Ann. § 49.04 (West Supp. 2017). In two
issues, he argues that the evidence is insufficient to support the findings that his
1
See Tex. R. App. P. 47.4.
mental and physical faculties were impaired.2 See id. § 49.01(2)(A) (West 2011)
(defining intoxication as “not having the normal use of mental or physical faculties
by reason of the introduction of alcohol” among other substances). Because we
hold that the evidence is sufficient to support both of those findings, we affirm.
Background
Officer Joshua Rodriguez with the Fort Worth police department was on
his way home from work around 2:00 a.m. when he saw a car stopped in the
middle of Benbrook Boulevard; a man police later identified as appellant was
passed out in the driver’s seat. Rodriguez got out of his car and knocked on the
passenger side window, but appellant did not wake up. Rodriguez walked to the
driver’s side of the car and shined his flashlight on appellant; he was “slumped
over,” his foot was on the brake, and there were keys in the car’s ignition.
Appellant finally woke up when Rodriguez began “jiggling” the car door.
According to Rodriguez, appellant was “out of it,” but at Rodriguez’s instruction,
he pulled into the parking lot of a nearby convenience store.
After appellant pulled into the parking lot, he rolled down the window.
Rodriguez heard appellant slurring his speech and saw that appellant had
2
Appellant has not challenged whether the evidence is sufficient to support
any other element of the offense of DWI. See, e.g., Dornbusch v. State, 262
S.W.3d 432, 436–38 (Tex. App.––Fort Worth 2008, pet. ref’d) (citing cases with
similar facts and holding that evidence was sufficient to show that Dornbusch
operated motor vehicle when he was found in parking lot asleep or passed out in
driver’s seat, with engine running and headlights and radio on, and car was in
gear but stationary only because it was resting against the curb).
2
glossed-over eyes; Rodriguez also smelled something fruity. Rodriguez believed
the smell was “indicative of alcohol.” Appellant kept telling Rodriguez to let him
go home, but Rodriguez called 911 and told appellant to wait for the police.
Benbrook police officer Timothy Miller responded to the 911 call. Miller
noticed that appellant’s eyes were bloodshot, watered, and heavy, and he could
smell the odor of an alcoholic beverage on appellant’s breath. Appellant told
Miller that he had drunk two beers. Appellant exited the car, and Miller noticed
that appellant was unsteady as he walked. Miller decided to perform
standardized field sobriety tests on appellant.
Appellant showed six out of six clues indicating intoxication during the
horizontal gaze nystagmus test, four out of eight clues during the walk-and-turn
test, and two out of four clues during the one-leg-stand test. Specifically, during
the walk-and-turn test, appellant could not keep his balance while listening to
instructions, lost his balance while walking, and stumbled as he was turning
around. During the one-leg-stand test, he swayed while balancing. Miller
determined––based on his own observations of appellant, Rodriguez’s
observations, and the fact that appellant had been “passed out in a lane of
traffic”––that appellant had lost the normal use of his mental and physical
faculties and arrested him for DWI. While Miller was placing appellant in his
squad car, appellant stated, “I’m not drunk to the point where I would kill
somebody.” At the police station, appellant refused to provide a breath specimen
for testing and refused additional field sobriety tests.
3
Standard of Review
Federal due process requires that the State prove, beyond a reasonable
doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307,
316, 99 S. Ct. 2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-
process review of the sufficiency of the evidence to support a conviction, we view
all of the evidence in the light most favorable to the verdict to determine whether
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. at 2789;
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is
the sole judge of the weight and credibility of the evidence and may draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599; Blea v. State, 483 S.W.3d
29, 33 (Tex. Crim. App. 2016); see Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979). We determine whether inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015).
Conviction Supported by Sufficient Evidence
Relevant evidence of intoxication as it is defined in the penal code includes
any sign of impairment in the ability to speak, refusal to take a blood-alcohol test,
unsteady balance, gait problems, the odor of alcohol, glassy eyes, bloodshot
eyes, the presence of intoxication clues during standardized field sobriety tests,
4
and admissions concerning what, when, and how much a person has drunk.
See, e.g., Burnett v. State, No. PD-0576-16, 2017 WL 4158919, at *6 (Tex. Crim.
App. Sept. 20, 2017); Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.
2010); Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001). Rodriguez’s
and Miller’s testimony is sufficient to support the determination that appellant
exhibited all of these signs of intoxication. And the dashcam video admitted into
evidence is consistent with their observations that appellant was unsteady and
had problems with his balance during the sobriety tests. Likewise, Miller’s
testimony that he determined that appellant “did not have control over his normal
mental and physical capabilities” and was intoxicated is relevant evidence of
intoxication.3 See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979);
Jackson v. State, 468 S.W.3d 189, 193 (Tex. App.––Houston [14th Dist.] 2015,
no pet.).
Appellant argues in his briefing that Miller testified only that appellant
appeared to be a danger to himself and others––an element of the offense of
public intoxication, not DWI. But although Miller testified that appellant appeared
to be a danger to himself and others, he also testified that appellant did not have
control over his mental and physical capabilities. Appellant also argues that
Miller did not state any specific facts in support of his conclusion that appellant
3
Miller testified that he typically watches DWI suspects to determine if they
can appear to do “normal things” and that appellant did not appear to be able to
do those things.
5
was intoxicated. But as we have pointed out, both Miller and Rodriguez testified
that appellant exhibited multiple signs of intoxication.
Based on the foregoing evidence of “the usual indicia of intoxication,” we
hold that a rational trier of fact could have found beyond a reasonable doubt that
appellant did not have “the normal use of mental or physical faculties by reason
of the introduction of alcohol.” See, e.g., Tex. Penal Code Ann. §§ 49.01(2)(A),
49.04; Kirsch, 306 S.W.3d at 745; Zill v. State, 355 S.W.3d 778, 785–88 (Tex.
App.—Houston [1st Dist.] 2011, no pet.).
Conclusion
We overrule both of appellant’s issues and affirm the trial court’s judgment.
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 1, 2018
6