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Ortiz v. State11/30/2004
of error, appellant contends the evidence is factually insufficient to support his intoxication assault conviction.
In particular, appellant maintains that the State failed to show he was intoxicated because the only evidence relied upon by the State to show intoxication was the extrapolation testimony and it was unreliable. Our review of the record shows that contrary to appellant's assertion, the State did not rely solely on the extrapolation testimony by Rohr. In addition to the extrapolation testimony, the record shows Gray testified that appellant had been drinking beer all night and was drunk and acting "crazy." Davidson testified that during his investigation of the accident he searched the truck and found beer bottles and an empty twenty-pack container of beer. A short time later, when Davidson attempted to speak with appellant in the hospital, appellant was "passed out" and smelled strongly of alcohol. Later, when Davidson interviewed appellant he admitted that he was driving the truck when the accident occurred and that he had been drinking. Although appellant claimed to have only drunk two of the 72 beers he and Alvarado purchased, the jury was free to disbelieve that portion of appellant's testimony. After a neutral review of the evidence we cannot conclude that (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's fifth point of error.
In his sixth point of error, appellant contends that the evidence is factually insufficient to support his convictions for child endangerment. According to appellant, the only evidence showing he was driving the truck was elicited from Gray, who was only seven-years-old at the time of the accident and her "memory from that night was mostly from what her mother told her and not from her actual memory." Again, appellant fails to acknowledge certain evidence in the record. In addition to Gray's testimony, the record shows that appellant admitted he was driving the truck when he was interviewed by Davidson. Further, Davidson testified that when he asked appellant if he was injured in the accident, appellant showed Davidson bruising and redness on appellant's left shoulder that was "consistent with somebody in a driver's seat with a shoulder belt on." Even though appellant claimed that Alvarado and not appellant was driving the truck when the accident occurred, the jury was free to disbelieve appellant's self-serving testimony. After reviewing the entire record, we cannot conclude that (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's sixth point of error.
Speedy Trial
In his seventh point of error, appellant contends he was denied his constitutional right to a speedy trial. Appellant raises this complaint for the first time on appeal. Because there is a division of authority concerning whether a defendant can raise a speedy trial claim for the first time on appeal, we first consider whether appellant preserved error for our review.
In Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), the Court of Criminal Appeals explained that our legal system has three distinct types of rules (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon reque
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