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Smith v. State8/25/2003
whelming that it renders the guilty verdict clearly wrong and unjust. See id.
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). To prove appellant was intoxicated, the State must show he did not have the normal use of his mental or physical faculties by reason of introduction of alcohol or other substances. Id. § 49.01(2)(A).
Analysis
Appellant asserts the verdict is contrary to the overwhelming weight of evidence and is clearly wrong because: (1) appellant's ability to perform the field sobriety tests was compromised by the effects of the accident; (2) the paramedic who tended to appellant after the accident did not testify that appellant appeared intoxicated; (3) Palmer testified appellant did not appear intoxicated when she saw him approximately thirty minutes before the accident; and (4) the videotape shows appellant was not mentally or physically impaired.
There is conflicting evidence as to appellant's intoxication. Mazeika, Walukas, and Madison each testified that appellant had the odor of alcoholic beverage on his breath. Madison testified that appellant was unable to perform the field sobriety tests and that it was Madison's opinion appellant was intoxicated. Appellant asserts that his inability to complete the tests was affected by the violent crash of his vehicle into the trees. However, there was no testimony that appellant was shaken or traumatized or physically or mentally impaired by the accident, or that the accident had any effect on appellant's performance of the field sobriety tests. See Thomas v. State, 990 S.W.2d 858, 860 (Tex. App.-Dallas 1999, no pet.) (evidence factually sufficient to support finding of intoxication where there was no evidence defendant physically, mentally, or verbally impaired as result of accident or that accident had any effect on field sobriety tests); Sneed v. State, 964 S.W.2d 764, 766 (Tex. App.-Texarkana 1998, no pet.) (evidence legally and factually sufficient to support DWI conviction where no evidence any injury caused by accident would mimic signs of intoxication, and there was evidence of accident itself, slurred speech, red eyes, odor of alcohol, and balance difficulties).
Appellant also points out that Palmer visited with him for fifteen or twenty minutes, and when she left appellant just before 6:00 p.m., he did not appear intoxicated. However, the jury was the sole judge of the credibility of the witnesses and was entitled to reject all or part of Palmer's testimony. See Goodman v. State, 66 S.W.3d 283, 295 (Tex. Crim. App. 2001); Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The jury was free to place more weight on the testimony of Madison, a trained police officer, than the testimony of a layperson whose opinion was based on a casual encounter. See Scott v. State, 914 S.W.2d 628, 630 (Tex. App.-Texarkana 1995, no pet.) Finally, appellant asserts the videotape taken after his arrest does not show he was intoxicated. The videotape was made about an hour and a half after the accident and about an hour after Madison administered the field sobriety tests. Madison acknowledged that appellant's performance on the tests at the police station was not as bad as his performance at the accident scene. However, Madison testified that the same tests were not administered at both locations and the passage of time allowed appellant's body to metabolize some of the alcohol, lowering the blood alcohol level. Madison did not waiver in his testimony that at the time of the accident, appellant was intoxicated to the extent he had lost the normal use of his mental and ph
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