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Smith v. State8/25/2003
A jury convicted appellant Choice Alford Smith, Jr. of driving while intoxicated. The trial court assessed punishment at 180 days confinement, probated for two years, and an $800 fine. In one issue, appellant asserts the evidence is factually insufficient to support the verdict. We affirm.
Background
On May 22, 2002, at approximately 6:30 p.m., appellant drove his Suburban into the front yard of Thomas Mazeika ("Mazeika") and crashed into two trees. Mazeika witnessed the accident from the front porch of his house. He ran to the vehicle to make sure appellant was not hurt. Appellant was able to exit the vehicle and stated he was fine. When appellant got out of his vehicle, an unopened, cold can of beer rolled out onto the ground.
Appellant asked Mazeika to dispose of the can of beer for appellant, but Mazeika refused. Mazeika observed that appellant was swaying, smelled of alcohol, and had red, watery eyes. When Mazeika asked if appellant had been drinking, appellant responded that he had had one or two beers, but a few minutes later said he had five or six beers. Mazeika also testified that his neighbor found a brown paper bag containing empty liquor bottles on the front passenger side floorboard of appellant's car and a cooler full of beer in the back seat of the vehicle.
Paul Walukas ("Walukas"), a Dallas fireman and paramedic, arrived at the accident scene. Appellant refused medical treatment, and Walukas did not remain because appellant did not have any signs of significant injury. Walukas testified that he smelled the odor of an alcoholic beverage on appellant's breath.
Dallas police sergeant John Madison ("Madison") arrived next at the scene. Madison believed appellant was intoxicated and administered several field sobriety tests. Appellant had to hold onto Madison's squad car for balance when appellant walked to the rear of the vehicle to perform the tests. Madison first attempted to administer the horizontal gaze nystagmus (HGN) test, but could not complete the test because appellant would not follow the instructions and keep his head still. Madison testified that appellant was unable to properly recite the alphabet, count backwards, or successfully perform the one-leg-stand and walk and turn tests. Based on the tests, Madison believed appellant was intoxicated and did not have the normal use of his mental or physical faculties. Madison arrested appellant for driving while intoxicated. At the police station, a videotape was made showing appellant's performance on several more field sobriety tests.
Appellant's friend Sharon Palmer testified that she was with appellant about thirty minutes before the accident. Palmer was discussing an insurance policy with appellant during the time she was with appellant. Appellant did not appear to be intoxicated during the time Palmer was with him, nor did Palmer smell an odor of alcoholic beverage on his breath.
Applicable Law
In conducting a factual sufficiency review, we neutrally analyze all of the evidence without the prism of "in the light most favorable to the prosecution" to determine whether the proof of guilt is so obviously weak as to undermine confidence in the verdict or the proof of guilt, though adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In conducting this review, we must be appropriately deferential to the jury's role as fact finder. Thompson v. State, 93 S.W.3d 16, 21 (Tex. Crim. App. 2001), petition for cert. filed, --- U.S.L.W. --- (U.S. June 13, 2003) (No. 03-5274). We will reverse only if we determine the proof of guilt is so weak or the contrary proof so over
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