Cartegena, Pedro Edwin v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 7, 2006

Affirmed and Memorandum Opinion filed February 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00103-CR

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PEDRO CARTEGENA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 228,772

M E M O R A N D U M   O P I N I O N

Appellant, Pedro Cartegena, appeals from his conviction for driving while intoxicated. A jury found him guilty, and the trial court sentenced him to six months in jail, probated for eighteen months, and a $300 fine.  In two issues, appellant contends that the evidence was legally and factually insufficient to support the verdict.  We affirm.

Background

Trooper Michael Brent Roper, of the Texas Department of Public Safety, testified that on the evening of August 2, 2003, he was on routine patrol north of Galveston. He spotted a vehicle parked on the shoulder of the northbound lanes of Interstate 45.  Roper pulled behind the vehicle and observed a man standing beside the vehicle who appeared to be urinating.  Roper approached the man, whom he identified in court as appellant. Roper saw someone in the passenger seat of the vehicle, but the driver=s seat was unoccupied.  Appellant showed signs of intoxication.  Roper made an inquiry, and appellant said that he couldn=t wait and had been urinating.   Appellant=s wife, who was in the passenger=s seat, stated something to the effect of AI just gave him the car back there.@ Appellant said, AYou wouldn=t have stopped me if I wouldn=t have stopped to go to the bathroom.  I was driving good.  I was driving slow. . . .  I couldn=t wait.@  After administering field sobriety tests to appellant, Roper arrested him on suspicion of DWI and took him to the Hitchcock Police Department.  There, Roper administered an intoxilizer breath test on a sample provided by appellant.  The results of the test showed appellant=s blood-alcohol level at over twice the legal limit of .08. See Tex. Pen. Code Ann. '' 49.01(2)(B), 49.04(a) (Vernon 2003).  Roper testified that he concluded appellant had been driving the vehicle because appellant=s wife was sitting in the passenger seat while the vehicle was stopped, and both appellant and his wife made statements indicating he had been driving.  Roper stated, however, that after his arrest, appellant said at one point AIt=s okay.  But I wasn=t driving.  But it=s okay.@  Roper explained that he discounted the importance of this statement because people say a lot of things after being arrested that they don=t mean. Roper also admitted that he did not know for certain how long the vehicle had been parked in that location before he observed it.

A video camera on Roper=s vehicle recorded much of the encounter that evening.  The videotape was played for the jury at trial. Roper identified a man on the videotape as being appellant.  When Roper approached appellant, appellant can be heard to say that he Acouldn=t wait@ and that he was on the freeway and could not get off. Appellant seems to say, AI wasn=t driving that bad.@  After Roper administered the sobriety tests and arrested appellant, Roper asked appellant=s wife AHow come you=re not driving?@  She responded, ABecause I just had to give him the car to him [sic] a few miles from here.@  Later in their conversation, she made a nearly identical statement.  She then added, AA few miles, like ten miles.@ Roper asked if appellant had been driving since Galveston, and she answered Ano.@  She explained that she was tired and they changed drivers on the side of the freeway. The video camera also recorded statements made by appellant during the ride to the Hitchcock Police Department. Appellant said, AYou never would have stopped me unless I stopped to the bathroom [sic], right?@  He said AI driving . . . @; the final word of the sentence is hard to make out but sounds like either Acool@ or Agood.@  Appellant further said, AI was driving slow and everything. . . .  I was driving good.  I swear that I was driving good.@

Milagro Valasquez, appellant=s wife, testified that she was driving on the night in question, and her husband was not.  She stated that she went around to the passenger side of the vehicle to open the door so that no one could see him urinating.  She said that she was very nervous when she was talking to the trooper, and she does not remember what she said to him.  She admitted that she was a little tired that night, but she denied that she stopped and let her husband drive.  She said that he had been drinking that day, and she felt that he had too much to drink to be driving. She said that she would have understood the trooper better if he had spoken to her in Spanish.  She said that her husband talks Aweird@ when he is intoxicated.

Appellant testified that on the day in question, he drank about ten beers before he and his wife got to Galveston, and he consumed about three more while in Galveston.  He acknowledged that he was very intoxicated by the time they left Galveston.  He said that he did not drive at any point during that day.  He asserted that his words just Acame out wrong@ when he was talking to the trooper.  He said that he told the trooper before the audio of the videotape begins that he was not the driver; his wife was the driver of the vehicle. He later reiterated this after the trooper arrested him.  He said that he may have made statements about driving to the trooper because he was intoxicated and confused about what the trooper was asking.

Analysis

In his second issue, appellant attacks the legal sufficiency of the evidence to prove that he was driving while intoxicated.  He does not dispute that he was intoxicated at the time he encountered Trooper Roper; instead, he specifically challenges the sufficiency of the evidence to support the finding that he was driving while in that condition.^[1]  In considering this challenge, 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.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  Although we examine all of the evidence presented at trial, we may not re‑weigh the evidence or substitute our judgment for that of the jury.  Id.  Appellant asserts that his conviction cannot be sustained on his own uncorroborated out-of-court statements standing alone.  In support of this argument, he cites cases in which appellate courts reversed D.W.I. convictions because the only evidence in the record that the defendant drove while intoxicated was the defendant=s own out-of-court statements.  See Threet v. State, 250 S.W.2d 200 (Tex. Crim. App. 1952); Hanson v. State, 781 S.W.2d 445, 446-47 (Tex. App.CHouston [1st Dist.] 1989), abated, 790 S.W.2d 646 (Tex. Crim. App. 1990); Coleman v. State, 704 S.W.2d 511, 511-12 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d); see also Stoutner v. State, 36 S.W.3d 716, 721-23 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d).

The present case is distinguishable from these cases because the record here contains additional evidence that appellant was driving while intoxicated.  The record contains evidence of inculpatory out-of-court statements by appellant, both in the form of Roper=s testimony and the videotape taken from Roper=s vehicle.  The record also contains evidence of appellant=s wife=s statements, recited by Roper and audible on the videotape, indicating that appellant had been driving immediately prior to stopping on the roadside and encountering Trooper Roper.  She twice stated that she had just given him the car a few miles back because she was tired.  She also said that they changed drivers on the side of the freeway and that he had stopped to urinate.  Additionally, Roper testified that when he pulled behind the vehicle, appellant appeared to be urinating, and appellant=s wife was in the passenger=s seat, not the driver=s seat.  Therefore, it was rational for the jury to conclude that appellant had been driving while intoxicated immediately prior to his encounter with Roper.  Appellant=s assertion that his conviction was based solely on his own uncorroborated, out-of-court statements is incorrect.  We overrule appellant=s second issue.

In his first issue, appellant attacks the factual sufficiency of the evidence to prove that he was driving while intoxicated.  Again, he does not dispute that he was intoxicated at the time he encountered Trooper Roper; rather, he challenges the sufficiency of the evidence that he was driving while in that condition.  In evaluating the factual sufficiency of the evidence, we examine all of the evidence in a neutral light and determine whether the 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.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Specifically, appellant asserts that (1) his conviction Awas based solely on the testimony of Trooper Brent Roper,@ and (2) there was no evidence to support Roper=s conclusion that appellant was driving except for appellant=s out-of-court statements.  We discuss each argument in turn.

First, appellant=s assertion that the conviction was based solely on Roper=s testimony is incorrect.  Nowhere in his briefing does appellant mention the fact that the videotape was admitted into evidence and repeatedly shown to the jury during trial. Trooper Roper=s testimony is strongly corroborated by the videotape evidence.  On the videotape, both appellant and his wife make multiple statements indicating that appellant was driving immediately prior to stopping the vehicle on the shoulder of the interstate.

Second, as discussed above, it is additionally incorrect that there was no evidence to support Roper=s conclusion that appellant was driving except for appellant=s out-of-court statements.  Appellant=s wife also made statements, recited by Roper and audible on the videotape, indicating that appellant had been driving immediately before stopping on the roadside.  Additionally, Roper testified that when he pulled behind the vehicle, appellant appeared to be urinating, and appellant=s wife was in the passenger=s seat, not the driver=s seat.  Although she offered an explanation for why she was in the passenger=s seat, the jury, as trier-of-fact, was free to disbelieve her explanation.  See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  The evidence was factually sufficient to support the verdict.  We overrule appellant=s first issue.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 7, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The record contains the results of an intoxilizer breath test that showed appellant=s blood alcohol content at over twice the legal limit.  Both appellant and his wife also testified to his consumption of alcohol that day and his intoxicated state at the time Trooper Roper found them on the side of the interstate.