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Dunn v. State8/19/2004
s pulled over, Appellant stumbled out of the door and approached the officer. He was sweating profusely, and seemed nervous. Sommers also noticed the odor of alcohol.
Officers Estrada and Ferrel were dispatched to the scene around 11:30 p.m. and went to mile marker 12 where Appellant was apprehended The officers took over and transported Appellant back to the scene of the accident. In transit, they smelled alcohol on Appellant. They described him as jumpy, nervous, excited, talking, and saying that he was not involved in an accident. His speech was mumbled, garbled, and thick-tongued. The officers testified that they were not at the place where Appellant was apprehended for more than five minutes. Upon completion of their investigation, the officers called the STEP unit, which arrived within thirty minutes. Officer Acosta, STEP unit member, detected alcohol on Appellant’s breath; his eyes were red and watery; he was aggravated, and his speech was slurred and mumbled. Since Acosta suspected that Appellant was drunk, he asked him to perform the field sobriety tests. Appellant failed all three sobriety tests. Appellant was taken to the station and submitted three deficient breath samples at 12:52 a.m., 12:59 a.m., and 1:06 a.m. Contrary to Appellant’s contention, the record indicates that he performed the sobriety tests between 12 a.m. and 1 a.m.
Citing Weaver v. State, 721 S.W.2d 495, 498-99 (Tex.App.--Houston [1st Dist.] 1996, pet. ref’d) and McCafferty v. State, 748 S.W.2d 489, 490 (Tex.App.--Houston [1st Dist.] 1988, no pet.), overruled by, Gardner v. State, 2002 WL 576073 (Tex.App.--Houston [14th Dist.] 2002, no pet.), Appellant maintains that indications the accused was intoxicated at the time the police arrived do not prove intoxication when the accused was driving. Evidence of Appellant’s intoxication is abundant and stems from the testimony of Officer Sommers, who personally observed his erratic driving, and Officers Estrada and Ferrel, who arrived at the scene within minutes of his apprehension. Viewing the evidence in a neutral light, we find that the proof of Appellant’s guilt is not so obviously weak as to undermine our confidence in the jury’s determination and that the evidence is factually sufficient to show Appellant’s identity as the driver and that he was intoxicated both at the time of the accident and when apprehended. We overrule Point of Error No. Five and affirm the judgment of the trial court.
(Do Not Publish)
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