Peter J. Tello, Jr. v. The State of Texas--Appeal from 137th District Court of Lubbock County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-08-00314-CR

Case Date: 10/30/2009

Plaintiff: COMMONWEALTH GENERAL CORPORATION

Defendant: WILLIAM E. YORK, ET AL.--Appeal from 214th District Court of Nueces County

Preview:Juan Garcia v. The State of Texas--Appeal from 187th
Judicial District Court of Bexar County
No. 04-00-00095-CR
Juan Sanchez GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From, the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-6911
Honorable Pat Priest, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Phil Hardberger, Chief Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: February 7, 2001
AFFIRMED
A jury found Garcia guilty of the felony offense of driving while intoxicated. The trial court imposed a twenty-five
year sentence on Garcia as a habitual offender. On appeal, he asserts the evidence is factually insufficient to support
the jury's verdict of guilty. We disagree with his allegations and affirm the lower court's judgment.
Standard of Review
Reviewing evidence under a factual sufficiency challenge, we examine the evidence weighed by the jury tending to
prove an elemental fact in dispute and compare this with the evidence tending to disprove the same fact. Johnson v.
State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 832 (1997)). While we are authorized to disagree with the fact finder's decision, we set aside the
verdict only if "such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 7,
9;Clewis v. State, 922 S.W.2d 126, 129, 135 (Tex. Crim. App. 1996).
Factual Sufficiency of the Evidence
The evidence at trial included testimony of the arresting officer and a video tape of Garcia performing sobriety tests in
the intoxilyzer room. At trial the arresting officer's testimony established the following. The officer pulled Garcia over
after clocking him driving 61 miles per hour in a 35 miles per hour speed zone. After approaching Garcia in his
vehicle, the officer smelled alcohol and noticed his slurred speech. Suspecting intoxication, the officer performed a
horizontal gaze nystagmus on Garcia. During the test, all six of the possible indicators were positive for intoxication.
The officer also performed the Romberg test on Garcia which likewise indicated intoxication. Then the officer
instructed Garcia to perform the one-leg stand test which he was unable to complete. During the walk and turn test,
Garcia's performance on all eight evaluation points indicated intoxication. Garcia also was unable to count from 57 to
43 without error. The officer then placed Garcia under arrest. Garcia refused to take a breath test at the police station.
The officer video taped Garcia after he refused the test. In addition to this testimony, the jury viewed the video of
Garcia performing sobriety tests. While the State's evidence supports the jury's decision, we must also review the
evidence favoring Garcia.
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Garcia points out the arresting officer took codeine and other medication just prior to his testimony. However, the
record indicates he answered the questions in a responsive and logical manner. Furthermore, the jury was aware of this
information and could decide what weight to give his testimony. Additionally, Garcia contends the arresting officer
wrote some notes on his hand concerning the arrest which did not appear on the final report. Correspondingly, he
argues the officer did not recall placing food in Garcia's trunk before having his car towed until prompted by defense
attorney. Garcia also complains about other omissions from the report such as the officer not marking appropriate
boxes indicating slurring speech. (1) While this evidence indicates the officer omitted some facts from his report, its
relevance speaks to the credibility and weight of his testimony.
Conclusion
The police officer's failure to denote every fact relating to an arrest will not suffice to overturn a conviction for factual
sufficiency. Recognizing the fact finder's role, we must employ due deference to the jury's assessment of the credibility
of the witnesses and the weight to be given their testimony. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 135.
Clearly, the jury could have rejected any or all of the offered testimony. Considering the arguments presented and the
respect owed to the jury's decisions, we find the judgment is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Johnson, S.W.3d at 9; Clewis, 922 S.W.2d at 135. Therefore we find the
evidence is factually sufficient to support the jury's verdict. Accordingly, we overrule Garcia's sole issue and affirm the
trial court's judgment.
Karen Angelini, Justice
DO NOT PUBLISH
1. The fact was included in the narrative portion of the officer's report.
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