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Youens v. State3/18/1999
ing of appellant's mental and physical faculties. Id.
Appellant's complaint concerns the "finger-counting" and "hand-clapping" sobriety tests. To complete the finger-counting test, Trooper Pickett told appellant to use his fingers to count from one to four and then back to one. Appellant was to do this three times. To complete the hand-clapping test, Trooper Pickett told appellant to clap the palms of his hands together, and then to turn his hands over and clap the backsides of his hands together. Each time appellant clapped the backsides of his hands together, he was to count.
Like the sobriety tests in Gassaway, any indication of intoxication from either the finger-counting test or the hand-clapping test derives from a suspect's demeanor, the manner in which he speaks, and whether he has the mental ability to perform the tests correctly. Therefore, appellant's performance during these sobriety tests was not testimonial in nature, but was physical evidence of the functioning of appellant's mental and physical faculties. Accordingly, the trial court did not abuse its discretion by admitting Trooper Pickett's testimony concerning the manner in which appellant performed the finger-counting and hand-clapping tests.
We overrule appellant's second point of error.
Legal Sufficiency
Appellant contends in his third point of error that the trial court erred by not granting his motion for instructed verdict. Appellant acknowledges he was seated in his pickup, with the engine running, when Trooper Pickett arrived at the scene, but claims this is legally insufficient to establish that he was operating his pickup at the time of the offense.
A. Standard of Review
A complaint about the denial of an instructed verdict is reviewed as an attack on the sufficiency of the evidence. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Because Cook was decided when the only sufficiency review in criminal cases was legal sufficiency, i.e., before Clewis v. State defined factual sufficiency review in criminal cases, Cook naturally referred to legal sufficiency of the evidence as the appropriate standard of review for denials of instructed verdicts. Moreover, it is appropriate that instructed verdicts determine legal sufficiency, in that the remedies for legal insufficiency of the evidence and a motion for instructed verdict are the same - acquittal. The standard for reviewing the legal sufficiency of evidence to support a conviction is whether, after reviewing the evidence in a light most favorable to the verdict, any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)).
B. Operating a Vehicle
Appellant relies on cases holding the evidence insufficient to prove operation of the vehicle under facts similar to this case. See Ballard v. State, 757 S.W.2d 389 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd); Reddie v. State, 736 S.W.2d 923 (Tex. App.-San Antonio 1987, pet. ref'd). We have already set out the evidence in the light most favorable to the jury's verdict. The facts of this case are distinguishable from those of Ballard and Reddie, which do not include a defendant's admission. Here, appellant admitted, at the scene, that he was driving his truck when the accident happened. Further, appellant acknowledged he was driving and that 20 to 25 minutes had elapsed between the time the accident occurred and the time Trooper Pickett arrived at the scene. Viewing this evidence in a light most favorable to the verdict, we conclude
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