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Lovelace v. State12/30/1998
Richard Clayton Lovelace was convicted in a trial before the court of driving while intoxicated (DWI). In one point of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, appellant contends the evidence is legally and factually insufficient to show he was driving the car prior to the accident.
To prove its case, the State introduced testimony from two Richardson police officers. The officers, dispatched to an accident scene, found appellant slumped in the driver's seat of a car that had crashed into a center highway median. The front end of the car was on a center shoulder of the road. The rear of the car was sticking out into the left lane of the freeway. The ignition key was turned forward in the ignition and the dashboard lights were illuminated. The headlights were smashed and neither officer was able to recall if the headlight switch was activated. Neither officer observed appellant driving the car. One of the officers, certified to conduct the horizontal gaze nystagmus (HGN) test, testified that appellant exhibited four out of six indicators of intoxication when she performed the HGN test on appellant. The officers also testified that appellant failed three additional field sobriety tests at the accident scene. Both officers rendered their opinions that appellant was intoxicated.
Appellant's DWI videotape was played for the trial court. The videotape shows appellant performed poorly on a backward counting test, slurred his speech, behaved inappropriately, and exhibited poor balance. Although his speech was slurred and difficult to understand, appellant appeared to admit that he "tore the car up." On the videotape, appellant initially agreed to provide a breath specimen stating, "I want to know how drunk I am." Later, however, appellant forgot having his rights read to him and agreeing to provide a breath specimen. After the officers re-read appellant his rights, appellant refused to provide a breath sample or to answer any questions. At trial, appellant did not testify nor did he introduce any evidence in his defense.
It was the fact finder's role to weigh the credibility of the witnesses and to determine the weight to give to their testimony. See Cain v. State, 958 S.W.2d 404, 407-09 (Tex. Crim . App. 1997); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App...Dallas 1991, pet. ref'd). Viewing the evidence in the light most favorable to the judgment, we conclude the trial court could reasonably infer from the officers' descriptions of appellant's position behind the wheel and the condition of his automobile that appellant was driving the car at the time of the accident. See Dumas, 812 S.W.2d at 615; see also Peddicord v. State, 942 S.W.2d 100, 103-06 (Tex. App...Amarillo 1997, no pet.); Lopez v. State, 936 S.W.2d 332, 335 (Tex. App...San Antonio 1996, no pet.); Barton v. State, 882 S.W.2d 456, 459-60 (Tex. App...Dallas 1994, no pet.). Thus, we conclude the evidence is legally sufficient to support appellant's conviction. See Tex. Penal Code Ann. § 49.04(a) (Vernon Supp. 1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Moreover, after reviewing all of the evidence without the prism of "in the light most favorable to the prosecution," we cannot conclude that the trial court's judgment is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Accordingly, we overrule appellant's point of error.
We affirm the trial court's judgment.
SUE LAGARDE, JUSTICE
Do Not Publish
Tex. R. App. P. 47.3
971465F.U05
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