Michael Edward Frater v. State ( 2020 )

NO. 12-19-00018-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL EDWARD FRATER, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Michael Edward Frater appeals his conviction for driving while intoxicated, third or
more. In a single issue, Appellant contends the evidence is insufficient to support his conviction.
We affirm.
BACKGROUND
Texas Department of Public Safety Trooper David Anthony was dispatched on May 21,
2018, to a single-car accident on County Road 46 in Smith County, Texas. When he arrived on
the scene twenty-five minutes later, Appellant was the only person present. Anthony noted that
Appellant was standing near the vehicle and appeared intoxicated, having difficulty standing and
communicating clearly. As a result, Anthony conducted the horizontal gaze nystagmus test, a
field sobriety test, and observed all six indications of intoxication. Appellant consented to a
breathalyzer test, which registered 0.268. Anthony placed Appellant under arrest for driving
while intoxicated.
Appellant was charged by indictment with driving while intoxicated, third or more.
Appellant pleaded “not guilty,” and the matter proceeded to a bench trial. Ultimately, the trial
court found Appellant “guilty” as charged and sentenced him to twelve years confinement. This
appeal followed.
EVIDENTIARY SUFFICIENCY
In his sole issue, Appellant contends the evidence is legally insufficient to support his
conviction. Specifically, he urges the evidence does not support the finding that he operated the
vehicle while intoxicated.
Standard of Review and Applicable Law
In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the
constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to
sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781,
2786–87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency challenge is
whether any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the
light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S.
Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789.
Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the fact finder’s resolution of conflicting evidence unless the resolution is not
rational. See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). The duty of a reviewing court is to ensure that the evidence presented actually supports a
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conclusion that the defendant committed the crime charged. See Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
The sufficiency of the evidence is measured against the elements of the offense as
defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
“A person commits an offense if the person is intoxicated while operating a motor vehicle
in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2020). The offense of driving
while intoxicated is a third-degree felony if it is shown that the person has been previously
convicted two times of any other offense related to the operation of a motor vehicle while
intoxicated. Id. § 49.09(b) (West Supp. 2020).
To support a conviction for driving while intoxicated, there must be a temporal link
between a defendant’s intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010). There must be proof from which the fact finder can conclude that, at the
time of the driving in question, whenever that may have been, the defendant was intoxicated.
Hughes v. State, 325 S.W.3d 257, 260 (Tex. App.—Eastland 2010, no pet.). A conviction can be
supported solely by circumstantial evidence. Kuciemba, 310 S.W.3d at 462. Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor. Id. Being
intoxicated at the scene of a traffic accident in which the actor was a driver is some
circumstantial evidence that the actor’s intoxication caused the accident. Id.
Analysis
Appellant urges that the evidence is insufficient to establish that he operated the vehicle
while intoxicated. Specifically, he contends that the State failed to establish a “temporal link”
between his driving and intoxication. Appellant concedes that he was intoxicated on the day of
the accident and that he was the driver of the vehicle. However, he argues that the State failed to
prove that both events occurred at the same time.
Trooper Anthony testified that he was dispatched to a single-vehicle accident on May 21,
2018, on County Road 46 in Smith County. When he arrived, it appeared to him that the vehicle
“drove off the road farther back, skidded, and ended up in the – the front part of the vehicle in a
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ditch.” The only individual present at the scene was Appellant who was “in the trunk of his car
. . . moving stuff around.” Trooper Anthony testified that Appellant had trouble communicating
and difficulty standing. Appellant had also urinated in his pants. According to Trooper
Anthony, Appellant appeared “highly intoxicated.” Trooper Anthony attempted field sobriety
tests on Appellant; however, he was only able to conduct limited tests due to the level of
Appellant’s intoxication. He conducted the horizontal gaze nystagmus test and observed all six
clues of intoxication. Appellant consented to the portable breath test, which registered 0.268.
Trooper Anthony’s dash-cam video corroborated his testimony, was admitted into evidence, and
was played for the trial court.
Trooper Anthony further testified that it took him approximately twenty-five minutes to
arrive on scene after being dispatched. And although he did not observe Appellant driving the
vehicle, Trooper Anthony believed Appellant did not become intoxicated following the accident.
He testified that there was no alcohol in the vehicle and there were no empty bottles in or around
the vehicle. Trooper Anthony testified that he did not observe Appellant operating the vehicle,
but he further testified as follows:
Q. So what, to you, gave you enough cause to believe that the defendant was the one who actually
operated that motor vehicle into the ditch?
A. From the get-go, he -- he was the only one there when I arrived. The seat fit him. He was,
pretty much, the tallest one there. You see him sit down several times in there. He kept reaching
for his cigarettes that was in there. He had also urinated in his pants. And the car’s driver’s seat
had urine on it. Also, with the interview, his statements, he stated that he had been driving and
that, you know, he had drove into the ditch. And when the -- the lady with the red outfit showed
up, he told her, “I don’t know. I just drove into the ditch,” or something to that effect. It was a
little bit further back when I heard it on the audio.
And when asked why he believed Appellant must have been intoxicated before he drove the
vehicle, Trooper Anthony responded:
The -- when we get -- when somebody calls 911, they dispatch it immediately. We get there. There
-- at his level of intoxication, he could not have drove earlier, had that wreck, and gotten that
drunk that quick.
Based on these observations and his experience, Trooper Anthony opined that Appellant had
indeed driven the vehicle while intoxicated.
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It is true that there was no direct testimony in the record to establish the time of the
accident. But there is circumstantial evidence from which a fact finder could infer that the
accident occurred in close proximity to the time that Trooper Anthony questioned Appellant.
The record indicates that Trooper Anthony was dispatched to a wreck where, upon arrival, he
discovered Appellant. No other person was present at the scene with Appellant. And Trooper
Anthony testified that he arrived on scene as quickly as he could after being dispatched, which
took approximately twenty-five minutes.
Similarly, there is sufficient evidence to establish that Appellant was intoxicated at the
time he was operating the vehicle. Trooper Anthony testified that he determined Appellant was
intoxicated. The record reflects that Appellant showed signs of intoxication, including difficulty
standing and speaking. The record also reflects that no alcoholic beverages were present at the
scene. Appellant had urinated in his pants and Trooper Anthony observed urine in the driver’s
seat. The trial court, as fact finder, after considering Trooper Anthony’s testimony and watching
a video of his encounter with Appellant, agreed with Trooper Anthony regarding Appellant’s
intoxication. Further still, the trial court concluded that Appellant had been intoxicated when he
operated the vehicle. Based on our review of the evidence, we conclude that the trial court could
have reasonably found, beyond a reasonable doubt, a temporal link between Appellant’s
intoxication and his driving. See Kuciemba, 310 S.W.3d at 462. Accordingly, we hold that the
evidence is sufficient to support that Appellant was operating a motor vehicle while intoxicated.
Appellant’s sole issue is overruled.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 30, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 30, 2020
NO. 12-19-00018-CR
MICHAEL EDWARD FRATER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0916-18)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.