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Kinsey v. State9/30/1999
Reginald Wayne Kinsey, appellant, was found guilty by a jury of driving while intoxicated. The trial court assessed his punishment at 180 days confinement, probated for two years, and a $500 fine. Appellant contends, in his sole point of error, that the evidence is legally insufficient to support his conviction. We affirm.
Houston Police Officer J. T. Lewis observed appellant driving at a high rate of speed at 1:30 a.m. on August 27, 1994. When the officer pulled in behind appellant's vehicle and turned on his overhead lights and siren, appellant increased his speed. Appellant ran a stop sign, drove erratically, and sped through a residential neighborhood. Finally, when appellant lost control of the vehicle, he hit a culvert and stopped. Officer Lewis arrested appellant and radioed for another officer. Lewis stated he smelled the strong odor of alcohol on appellant's breath. He also stated appellant was pretty loud and boisterous and wanted to know why he was stopped. Appellant further asked what happened to his car and how he got in the ditch. In Officer Lewis's opinion, appellant had lost the normal use of his mental and physical faculties and was intoxicated.
Officer D. W. Brown stated that, when he arrived at the scene, appellant was verbally abusive and combative. As a result, he did not remove the handcuffs from appellant or perform field sobriety tests because he believed that doing so would risk a physical confrontation with appellant. Brown also smelled an odor of alcohol on appellant's breath and was of the opinion that appellant was intoxicated.
Upon arriving at the police station, appellant performed sobriety tests under the supervision of other officers. Those tests were videotaped and played for the jury. Officer Lewis testified that in his opinion appellant was intoxicated. He based his opinion on appellant's conduct at the scene of the arrest, the odor of alcohol on his breath, and his performance on the videotaped sobriety tests.
Appellant testified that he drank one and one-half beers that night and that he did not stop when the officer was following him because he was afraid. He stated that he did not hit a culvert, but that he just pulled off to the side of the road. He further testified that he cooperated with the officers, but admitted that he refused to take a breathalyzer test.
In his sole point of error, appellant argues that the evidence was legally insufficient because Officer Lewis formed the opinion that appellant was intoxicated without having had a sufficient time to observe him. He further argues that, if he was disoriented, it could easily have been a result of the crash, rather than intoxication.
When conducting a legal sufficiency review of the evidence, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The issue is whether any rational trier of fact could find the crime's essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; McDuff, 939 S.W.2d at 614; Green v. State, 891 S.W.2d 289, 297 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The jury is the exclusive Judge of the credibility of the witnesses and the weight to be given their testimony. McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App. 1996). In a driving while intoxicated case, the testimony of an arresting officer can be sufficient to prove the element of intoxication. Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). In addition, refusal to take a breathalyzer test may be considered by the fact finder as evidence of intox
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