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Dunn v. State8/19/2004
ate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder’s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
Applicable Law
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex.Penal Code Ann. § 49.04(a)(Vernon 2003); Tex.Penal Code Ann. § 49.09(c)(Vernon Supp. 2004). The Texas Penal Code defines “intoxication” as: (a) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (b) having an alcohol concentration of 0.08 or more. Id. at § 49.01(2)(A)(B). An offense of driving while intoxicated is a third-degree felony if it is shown on the trial of the offense that the person has been previously convicted twice of another offense relating to the operation of a motor vehicle. Id. at § 49.09(b).
Identification of Appellant as Driver in Accident
Appellant argues that neither Montes nor any other witness could identify him as the driver of the truck involved in the accident. He complains that the State did not call Valentic as a witness to verify that a license plate number was obtained or to identify him as the driver. Moreover, he argues that the damage to the vehicles failed to substantiate that his truck was involved in the accident. He concludes that since none of the evidence actually placed him at the scene until after his arrest, the evidence had no bearing on his ability to function on the roadway that evening. In short, he claims that the accident and his arrest were not connected.
While Montes could not identify him as the driver, Officer Sommers testified that she was looking for a red, Volvo eighteen wheeler with a shiny white trailer with “Volunteer Transport” on it. The vehicle that she pulled over matched this dispatch description. Officers Estrada and Ferrel had received the same dispatch and also described Appellant’s truck as meeting the description. Sommers, Estrada, and Ferrel all identified Appellant as the driver of the truck. No other individual was present at the scene.
There was conflicting evidence about the damage to Appellant’s truck. Sommers testified that the damage was located on the front right-hand side of the top bumper. Estrada and Ferrel found damage to the rear driver’s side. The jury as the finder of fact was entitled to be the judge of witness credibility and believe whatever testimony it chose. See Chambers, 805 S.W.2d at 461.
When Appellant Was Tested for Sobriety
Appellant also argues that the evidence did not establish when he was field tested for sobriety and that the testing thus did not prove that he was impaired by alcohol when he was driving. We disagree. There were many indicators of intoxication present. Sommers spotted the vehicle traveling in the inside lane at a high rate of speed. She characterized the vehicle as driving erratically, going from the inside lane to the center lane, and moving people out of its way. Other people on the road were actually fleeing from side to side to get out of the way. When he wa
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