A [FIRM; Opinion issuctl November 27, 2012.

In [he (tiiirt ni i11!3 Fi(tI! Jttrit1 tit i’Xdi tt 1a11a3 No. 05—i 1—00497-Ck

RANt) ALL CLAYToN IAY, Appellant V. tilE STATE OF TEXAS, Appellec

On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No 004—8519—09

MEMORANDUM OPINION Before Justices O’Neill, l’itzGeraId, and Lang-Miers Opinion By .1 ustice O’Neill A jury convicted appellant Randall Clayton May o misd emeanor driving while intoxicated. lie was sentenced to one hundred twenty days con hner ncnt, probated for five months, with a fine.

On appeal, he argues the evidence is insufficient to supp ort his conviction and that the trial court abused its discretion by admitting an oral offense report.

We affirm the trial court’s judgment.

Backro nn d On May 29, 2009, appellant picked up his friend Mark Cash man in 1)allas and drove to Fort Worth to attend the Colonial golf tournament. Cashman admitted that both men had a couple of beers before leaving the tournament around 6pm. They ate dinner at The Mexican Inn before visiting a friend’s house. Cashman denied that he or appellant dran k any alcohol at dinner or at their friend’s house. When appellant drove the two men hack to l)allas, Cashman said appellant was not drunk and had nut lust the normal use of his mental or physical làcullies lioiit consuming alcohol.

Appellant dropped (‘ashman oft around 9:3 or 9:45 p.m. At approximately 10:21 p.m ..

Agent Jay Odem was patrolling the northb ound direction of the l)allas North follway when he observed a dark-colored SUV cross the solid white line and go onto the shoulder. Age nt Odem activated his emergency lights after he observed the SUV cross the solid white line a second time.

The SLJV drifted a third time before Agent Ode m activated his emergency siren. The driver still did not stop for approximately another mile. The driv er finally turned into a Tom Thumb parkin g lot and stopped. however, the driver turned from the wrong lane.

As Agent Odem approached the vehicle, appella nt attempted to get out. Agent Odem told him to stay in the vehicle, but he was having trou ble getting back into the car. Agent Odem assi sted him. Agent Odem then asked appellant some questions, but Agent Odem said he had jus t a blank stan.” lie thought appellant wanted to answer but could not Appellant provided his driver’s lice nse but was unable to produce insurance. Appellant’s driver’s license did not have any visual restrict ions listed, nor did he have on glasses or contacts.

During the encounter, Agent Odem smelled alcoh oL coming from appellant’s breath. Agent Odem asked appellant to get out of the car so he could conduct field sobriety tests.

Before perfonning the horizontal gaze nystagmus test, Agent Odem asked appellant ifhe had suff ered any recent head injuries, and appellant said yes. How ever, he was unable to articulate the exact nature ofhis injury or provide any further details. Age nt Odem ran a test to determine ifappellan t, despite a head injury, was a good candidate for the HON test. He confirmed that appellant’s pupils were equal size and that both eyes tracked equally, whi ch essentially would rule out a serious bra in stem injury Agent Odem determined appellant was a good candidate for the HON test

—2— Agent Odem perfonued the lICiN test and appe llant exhibited six out of six clues of mtoxication. lie also noted that appellant’s eyes were red and glassy, he had to be reminded of the instructions, and he had difficulty keeping his head stationary.

Agent Odem then explained the walk and turn test to appellant. lie had to repeat the instructions several times, and appellant had difficulty figuring out his left and his right foot. Agent Odem testified appellant never could get in the prop er position for the test. Appellant “just walked through it” and exhibited seven out of eight clues of intoxication. “As a generalization, he didn’t pretty much do anything I asked him to do in refer ence to that test.”

Appellant also performed poorly on the one-leg stand test. He swayed, used his arms for balance, and put his foot down. Thus, he exhibited three out of four clues of intoxication. Agent Odem did not have any doubt in his mind appellant was intoxicated.

Agent Odem then asked appellant to submit to a blood and breath test but appellant refUsed.

He arrested appellant for driving while intoxicated, He had to explain several times to appellant that he was under arrest. Agent Odem then put appellant in the front seat of his .squad car.

At the time ofappellant’s arrest, Agent Odem had a civilian in his car participating in a “ride along.” William Austin Porter testified he could smel l the strong odor of alcohol coming from the front seat where appellant was sitting. He also described appellant’s speech as sluggish and “slurring a little bit” When asked if appellant coherently respo nded to questions, he said “some were, some weren’t” Porter testified that based on his observati ons ofappella nt during the field sobriety tests and in the car, appellant was drunk.

Appellant introduced medical records showing he had a history ofeye problems that began in 2003. The records indicated he suffered from macu lar edema in his right eye and had cataracts in both eyes. He argued these problems would affec t his performan ce on the HGN test He further

-3- introduced medical records showing lie sutkrcd horn “cervical spine problems, thoracie cpine problems, lumbar spine problems, and low er hack syndrome.” lie argucd these con ditions would afThct his performance on the walk and turn and one leg stand test The jury convicted appellant of driving while intoxicated. This appeal followe d.

Snmclency of the Evidence In his lint issue, appellant argues the evid ence is insufficient to support his convict ion of intoxication by mason of alcohol consum ption because the State did not rationally account for his eye disease and poor vision. The State responds the evidence was sufficient to support his conviction because the jury was free to disbelieve his claims that his eye conditi on affected his performance on the I ION test, and we mu st defer to the jury’s determination. We agree with the State.

In reviewing the sufficiency of the evidenc e, the court considers all the evidence in the light most favorable to the jury’s verdict and determines whether any rational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,319(1979); Brooks v. State, 323 S.W .3d 893,895 (Tex. Crim. App. 2010).

The trier of fact is the sole judge of the weight and credibility given to witness testimony. Cain v. Sta te, 958 S.W.2d 404,407 (rex. Crim. App. 1997). The reviewing court may not act as the “thi rteenth juror” and reweigh thejury’s determinations ofthe wei ght or credibility ofthe evidence. William r v. State, 235 S.W.3d 742,750 (Ta. Crim. App. 2007).

The standard is the same for both direct and circumstantial evidence. Wise v. Sta te, 364 S.W.3d 900,903 (l’ex. Crim. App. 201 2). The State need not disprove all reas onable hypotheses that are inconsistent with the defendant’ s guilt it!. Rather, a court considers only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the

-4- evidence ‘. hen considered in the Iitht most Livotable to the verdict. ld. c aIs Ihm/wr i. Ia!t.

213 SW3d , I 2 flex. (rim. App. .100?.

I he State had the burden ot provirie appellant openited a motor vehicle in a public place while into.x waled. IEX. PENAL (‘( N )h ANN. sS •39.04(a) (West Supp. 201 2). “Intoxicated’ is defined as “not liaviru the normal use of mental or phys ical faculties by reason ot the introduction of alcohol, a controlled substance, a drug. a dangerou s drug, a combination of two or more of thos e substances, or any other substance into the body.

Tux. PENAL CODE ANN. 491)1 (2)(A § ) (West 2() I I).

As a general rule, the testimony of an officer that a person is intoxicated provides suflicient evidence to establish the element of’ intox ication for a DWI offense .5cc lnnis v. State, 578 S.W.2d 406. 307 (Tec (‘rim. App. 1979); TuIth v. State, 208—400-CR, 2009 WL 3720166, at *2 (Tex. Ai.Iort Worth Nov. 5, 20()9, pet. retd) (mem. op., not designated bar publication). In addition, evidence of intoxication may be proven by a combination of individual symptoms of intoxication that when taken individually do not necessarily prove intoxication. Id. The jury may also consider video of’ a defendant’s performance on held—so briety tests as direct evidence of intoxication.

See, e.g., Pose/ia/I v. State, 285 S.W.3d 166, 177 (Tex. App.—Fort Worth 2009, pet. retd).

Appellant argues we should ignore these gene ral rules because appellant’s medical records explain his performance on the sobriety tests , and Agent Oden reftised to conduct an objective investigation. Further, he alleges his nystagmus was likely caused by titigue from walking around all day in the heat, not drinking enough water, and eating a heavy Mexican meal.

Appellant’s arguments amount to nothing more than asking this Court to sit as the “thirteenth” juror and substitute our opinion for that of the trier of fact. While he has cited to authorities that explain nystagmus is an unre liable indicator of intoxication and may result from various congenital, pathologic, and toxic causes, appellant did not present any of these argumen ts

—— to the jury through an expert. Rather, the nitly explanation the jury heard regarding app ellant’s medical records was from the State through the testimony of Dr. Marcus Allen, an oph thalmologist specializing in retinal detachments and deg eneration.

Dr. Allen testified appellant suffered from cataracts in both eyes and macular ede ma in lila right eye. lie explained fluid accumulated in the central part ofthe retina reducing vision in the righ t eye. lie said appellanCs condition would not prevent him from seeing the lines on the road and driving between them. Dr. Allen also spe cifically testified nystagmus is not a sympto m a person generally experiences with appellant’s diag nosis. lie also testified that appellant’s “so cial history” on his medical records indicated he consum ed two alcoholic beverages a day.

Given Agent Odem’s and Porter’s testimony ofappellant’s performance on the sobriety tests and Dr. Allen’s explanation ofthe medical reco rds, it was not unreasonable for the jury to dete rmine appellant was intoxicated. Further, Agent Ode m and Porter testified they smelled a stro ng odor of alcohol coming from appellant. It was wit hin the province of the jury to determine any conllicts in evidence, and they were unpersuadcd by appellant’s medical history regarding his back and eye issues.

Further, the jury saw and heard part of the videotape of appellant’s performances on the sobriety tests. Appellant hesitated while ans wering questions and had difficulty com pleting his thoughts. The jury saw appellant struggle to follow simple instructions such as walkin g heel-to-we nine steps during the walk and turn test and keeping his arms down by his side during the one-leg stand test Appellant also had difficulty stan ding still while Agent Odem tried to handcu ffhim. The jury was free to consider the video as direct evidence of intoxication. See Paschail, 285 S.W.3d at 177.

-6- I ikewise, the iirv was the oIe udgc ot witness credibility ,intl was tree k) disbelieve ippcl I nit s loitettiuc Ii icnd M uk ( ishin in tcg mit nt thc taunt tnt 1 ilcohk)l thcv consiiincd it I hc nit tOtal Il uliftilt mc! ‘a hcihci tpptil tnt ‘a is di a’ inc norm illy th it night I uitlicr ‘ahule ippcll tnt argues in his brief that he was likely fatig ued tiom eating a heavy Mexican dinn er, there is no testimony in the record indicating what he ate at the restaurant or that eating a heavy Mexican meal could alti.et a persons ability to drive and perlonn field sobriety tests.

/\ccordincly, the evidence as sufficient to support appellant’s conviction of driv ing while intoxicated. We overrule his first issue.

Admission of Oral Offense Report In his second issue, appellant contends Agent Odem anticipated appellant would be prosecuted ti.rDWI and composed an “artful onthe—s cene narrative,” otherwise known as an inadmissible speaking offense report, whic h the trial court admitted as State’s Exhibit I l’he .

redacted audio and video portions of the tape were played for the jury. Appellan t objected the evidence was improper hearsay and bolstering. The State responded that Agent Odem was not describing appellant’s performance and appe arance fbr purposes of future litigation, but rather his observations were a natural part of commu nicating with appellant. Therefore, the State argues the audio and video portions were admissible under the present sense impression exception to the hearsay rule.

A trial court’s decision regarding the admissi bility of evidence is reviewed for an abuse of discretion. Cameron v. State. 241 S.W.3d 15, 19(Tex. Crim. App . 2007). Because trial courts are in the best position to decide questions of adm issibility, appellate courts uphold a trial court’s ruling on the admissibility of evidence when it is within the reasonable zone of disag reement. hi. (citing tvlontgomerv v. State, 810 S.W.3d 372, 391 (Tex. Crim.

App. 1991)).

Appellant tiled a pi cirtal motion to suppress in vhich he iirgett the trial CoUrt to suppress the narrated and reconled coinnicntary made by Agent ( )dcm Llnnng the I )W I inv estiiat ion. I he trial court ranted the inot urn to suppress in part, and the State redacted portions of the vide otape prior to trial. At trial. appellant objected to I he remai nim audio track, but the trial cour t overruled the objection and admitted it.

Appellant rehes on I’ischcr 5’tutc, 252 S.W3d 375 (TexJ’r iiii. App. 2008) to support his argument. Ilie issue betore that court was whether a law enftrcement otfieer’s factual observations of a DWI suspect, contemporaneously dict ated on his patrol car videotape, are adm issible as a present sense impression exception to the hear say rule under lexas Rule ot hViddnce 803(1). hI. at 376. [he court concluded they are not. Id. In that case. afler pulling over the driver for failing to wear a seatbelt. the officer conducted a road—side investigation into a suspected UWI offense. Id. The officer made ftnir separate trips back to his patrol car br the specific purpose of narrating what he had seen, smelled, and heard during his inve stigatory stop. hi. at 385. [Ic continually retirred to the driver as “the subject” (luring his narra tives, hi. at 384—85. [Ic offered his opin ions and conclusions about what his investigation revealed and how the driver performed on the field sobriety tests. Id. at 385.

‘[he court of criminal appeals concluded “The recorded factual observations made by polic e officers investigating a suspected crime are not the type of ‘non-refl ective’ street-corner statements of objective observers that the present sense impr ession exception is designed to allow.”

Id. at 383.

Present sense impressions are admitted beca use they are non-narrative, off-han d comments made without any thought of potential litigation by a neutral and detached observer with out any motive to fabricate, falsify, or exaggerate his observations. Id. The court further noted “on-the-scene observations and narrations of a police offic er conducting a roadside investigation of a DWI offense

—8— are tiaught with the thought of Ikiture pro secutio n.” lii.

Appellant contends the statements Age nt Odern made during the slop “were calc ulated implied assertions, albeit cloaked as instruc tions to questions, that Appellant was intoxicated by reason of alcohol” We cannot agree wit h appellant’s argument Unlike the officer in FLicker, Agent Odcin did not repeatedly return to his patrol carlo record a separate narration of his observations.

Instead, Agent Odem made comments dire ctly to appellant such as telling appellant to stay in his car, asking him to get out his license and insurance, and providing him basic instructions to the various sobriety tests. These were unrefle ctive statements and instructions that were part of his com munication with appellant that happened to be recorded, which the present sense impression exc eption to the hearsay rule allows. See . e.g.. Cakieron v. State, 08-09-00315-CR, 2011 WL 173406 (‘Fex. App—El Paso May 4, 2011, pet. ref’d) (not designated for publication) (distinguish ing Fischer and concluding officer’s videota ped statements to DWI suspect were not inadmissible hea rsay because they were not part ofa separat e narration, but rather the officer’s attempt to determine whether appellant was going to be able to complete the sobriety tests). They were not deliberate opi nions and conclusions regarding appella nt’s intoxication that the court ofcriminal appeals disapprove d in Fischer. Accordingly, the trial cou rt did not abuse its discretion by admitting State’s Exhibit 1. Appellant’s second issue is overruled.

Conclusion Having overruled appellant’s issues, we affirm the trial court’s judgm ent.

MICHAEL J. ONEILL Do Not Publish JUSTICE / TEx. R. APP. P.47 1 10497F.U05

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Q..LuIrt iii .‘IIi1I! Ji’.LLiCt ut tLLXd3 I1 JlL1&l JUDGMENT IL\NI)ALL. (L;\YI()N \1j\Y. Appellant Appeal ftoiu the ( otinty Court at Law No. 4 olCollin County, 1’exas, (FrCLNo. OO4 No. O5 I I OO497CR 5 1O9). )pinion delivered by .J ustice ( )‘ Nd Ii, II IIz STiVFIi OF TFXAS, Appellee Justices FitzGerakl and LangMiers, participating.

Based on the Court’s opinion ol this date, the judinent of the trial court is AIFI Hi I Kil.

Jn(lumeflt entered November 27, 2() 1 2.

JUSTICE