Opinion issued February 27, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00516-CR

____________

KEVIN KEITH BERNANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Court at Law Number Two

Fort Bend County, Texas

Trial Court Cause No. 94,290

MEMORANDUM OPINION

Appellant, Kevin Keith Bernander, pleaded not guilty to driving while intoxicated. The court found him guilty and sentenced him to 120 days in jail. In one point of error, appellant argues the evidence was insufficient to support the conviction. We affirm.

Appellant's wife, Billye Jean Alexander, testified that at approximately 3 p.m. on June 9, 2001, she and appellant bought a 12-pack of beer and drove to a party in Bay City. ⁽¹⁾ Appellant was driving Alexander's truck. They only stayed at the party an hour because they got into a fight. They drove back to Fort Bend County, and, at about 8 p.m., they stopped to get another 12-pack of beer. Alexander testified that appellant had drunk half of the beer he bought. They continued to argue, and Alexander asked appellant to pull over so she could go to the bathroom. She got out of the car and "took off walking."

Alexander testified she walked for a while, and then saw a police car's flashing lights. She walked toward the lights and discovered it was her truck that had been pulled over. She was concerned they were going to tow her truck because she thought they were going to take appellant to jail "for drinking."

Trooper Ashcraft testified he has been with the Texas Highway Patrol for four years. At approximately 11 p.m. on June 9, Ashcraft noticed an oncoming vehicle on State Highway 36 going 84 miles per hour in a 55 m.p.h. zone. Ashcraft turned on his siren and lights, but the truck did not stop. He followed the truck as it turned and finally stopped on Williams School Road. Ashcraft asked appellant to get out of the car, and he noticed appellant had to brace himself on the driver's side door to "regain his balance" and he smelled of alcohol. Ashcraft noticed some empty beer cans in the back of the truck. Appellant consented to a field sobriety test. ⁽²⁾ During the horizontal-gaze-nystagmus test, appellant "stuck his tongue out . . . and wiggled it." Ashcraft conceded the HGN test was invalid because appellant's pupils were irregular sizes, but appellant still failed the HGN test. Appellant failed four of the eight signs during the walk-and-turn test. Appellant failed three of the four signs during the one-leg-stand test. Ashcraft testified that, based on the totality of the circumstances, which included the results from the field sobriety tests, he believed he had probable cause to arrest appellant.

In his sole point of error, appellant argues the evidence is insufficient to support the conviction because the evidence does not show that he drove a motor vehicle on a public highway while he was intoxicated.

Appellant does not state whether he believed the evidence was legally or factually insufficient, or both, but in his prayer, he asks for an acquittal. Acquittal is appropriate only on a finding of legally insufficient evidence. See Ex parte Davis, 957 S.W.2d 9, 12 (Tex. Crim. App. 1997).

We review legal sufficiency by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.--Houston [1st Dist.] 1997, no pet.). To establish the offense of driving while intoxicated, the State must prove the defendant was intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon Supp. 2003).

Trooper Ashcraft testified appellant failed the field sobriety tests and Ashcraft saw appellant driving a truck on a public road. The evidence was legally sufficient to support the conviction. See id.

We affirm the judgment.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

1.At the time of trial, appellant and Alexander were divorced.

2.Appellant told Ashcraft he was bipolar and was taking Paxil, Risperdal, and Tegretol. Ashcraft testified he was unaware of how these prescription medications interacted with alcohol.