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Date: 08-18-2019

Case Style:

Timothy Joel Carpenter v. The State of Texas

Case Number: 02-19-00124-CR

Judge: Dabney Bassel

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Matthew A. Mills

Defendant's Attorney: Lori J. Kaspar


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The record in this case consists of the testimony of the DPS trooper who
stopped and arrested Appellant, one page of the report that the trooper prepared after
Appellant’s arrest, and a fifteen-minute video of the stop from the trooper’s body
camera.
3
The testifying officer had twenty-four years’ experience as a DPS trooper. He
had made 400 to 500 arrests for the offense of driving while intoxicated and had
conducted a similar number of investigations for the offense for which he made no
arrest.
On a one-hundred-plus-degree June afternoon, the trooper noticed Appellant’s
vehicle approaching in his rearview mirror. A check of Appellant’s speed showed that
he was driving 20 miles per hour over the posted 40 mile-per-hour speed limit. The
trooper pulled to the side of the road, let Appellant pass, and then initiated a traffic
stop. Appellant immediately pulled over and remained cooperative and continued to
answer the questions that he was asked throughout his encounter with the trooper.
Appellant, a mechanic, claimed that he was speeding to remedy a mechanical problem
that was causing the vehicle to overheat.
After the trooper approached Appellant’s vehicle, he noticed an open container
in the console. The container was a Four Loko alcoholic beverage. The label on the
24-ounce Four Loko container reflected that the beverage contained 12% alcohol—
while beer usually contains around 4.5% alcohol. The container was three-quarters
empty. The container was cold, which indicated to the trooper that Appellant had
recently purchased it.
In the trooper’s words, Appellant said that “it was a drink that he had been
drinking on.” The video generated by the trooper’s body camera demonstrates that
when the trooper inquired about the container, Appellant said, “I was drinking that
4
earlier.” Appellant stated that he had not even finished the container yet and that it
was all that he had consumed. He then stated that he “wasn’t going to even drink
that” but that he had become frustrated while attempting to diagnose the mechanical
problem with the vehicle he was driving.
After hearing Appellant’s acknowledgement of his consumption of the Four
Loko, the trooper administered a horizontal gaze nystagmus (HGN) test. The trooper
described the basis for the test as follows:
Nystagmus is a -- it’s referred to as an involuntary jerking of the eyeball, and horizontal is because we move -- it’s called a stimulus; you can use your finger or pen -- you move that side to side, and without nystagmus your eye will roll or move smoothly from one side to the next like a ball bearing on a track; it will move smoothly. The introduction of alcohol will create, and some other drugs, will create nystagmus, which causes a jerking movement as you’re moving the stimulus from side to side. The person who has nystagmus can’t see it, doesn’t even notice it, but it’s the eye not being able to focus on that stimulus or my finger as it moves side to side and it skips, it jerks back and forth, and again, this is created by the introduction of some drugs and alcohol into the system.

Without objection, the trooper testified that “when you see this nystagmus in the way
that we’re looking for [it,] it’s considered to be 88 percent accurate in determining
intoxication” of a level above .08 blood-alcohol content.
The HGN test examines three indicators per eye, for a total of six clues of
intoxication. The trooper detected a total of four clues of intoxication but was unable
to detect the remaining two clues because Appellant failed to follow instructions. A
report the trooper generated mistakenly stated that Appellant had demonstrated six
clues. The trooper performed the HGN test twice during the fifteen-minute stop that
5
preceded Appellant’s arrest. The second test produced the same result as the first.
According to the trooper, physical disabilities do not affect a person’s performance
during the HGN test. He also confirmed that a stroke would not affect a person’s
performance during the HGN test.
The trooper also attempted to perform other field sobriety tests, such as the
one-leg-stand and walk-and-turn tests. Appellant did not properly perform these
tests, but the trooper discounted these results as clues of intoxication because
Appellant claimed that he had been burned, had back and leg problems, had arthritis,
and had suffered strokes. The trooper also did not mention in his report that
Appellant did not follow the instructions that he was given while taking these other
tests because the trooper did not know how much of the failure to follow the
instructions was related to Appellant’s “physical aspects” and how much was related
to alcohol.
The trooper also performed two tests with a portable breath tester, the results
of which were not admissible. However, Appellant’s counsel asked the trooper
whether he took those tests into consideration in arresting Appellant, and the trooper
stated that he had. Appellant’s counsel spent a considerable amount of time during
cross-examination questioning the trooper on whether he had waited long enough
between the two portable breath tests for the second test to be valid and eventually
solicited an answer from the trooper that his experience indicated that the results of
6
the second test were reliable even if the test was performed before the end of the
recommended fifteen- or twenty-minute waiting period.
Appellant’s counsel also cross-examined the trooper regarding whether he had
administered other types of field sobriety tests. The trooper said that he did not
administer nonstandard tests and had not been trained on them because they did not
meet the National Highway Traffic Safety Administration’s standards.
The trooper acknowledged that his report did not mention that Appellant had
glassy, bloodshot eyes. The report also did not mention anything about slurred
speech.
Appellant agreed to take a breath test at the jail. However, there was a problem
with the machine used to perform the test. The trooper attempted to call a technical
supervisor for assistance but was unable to reach him. No results of tests conducted
at the jail were offered into evidence, and the trooper acknowledged that the evidence
of Appellant’s intoxication consisted solely of his observations on the side of the
road.
The jury also heard, without objection, the State ask the trooper, “And so
based on all the evidence that we saw on the video[,] what was your belief at that
point?” The trooper responded, “I believed that he was intoxicated.”
After hearing the above evidence, the jury found Appellant guilty of driving
while intoxicated. This appeal followed.
7
III. Sufficient evidence supports the intoxication element In his sole issue, Appellant argues that the evidence is insufficient to support
his conviction for driving while intoxicated. Specifically, Appellant argues that the
State did not prove the element of intoxication because the evidence of intoxication
consisted only of four clues on the HGN test. A. Standard of review Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
This standard gives full play to the factfinder’s responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman, 520 S.W.3d at 622.
8
B. The definition of intoxicated and the factors that are relevant to this appeal that are probative of intoxication
“A person commits an offense if the person is intoxicated while operating a
motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a).1 The penal code
defines “intoxicated” as “(A) not having the normal use of mental or physical faculties
by reason of the introduction of alcohol . . . into the body; or (B) having an alcohol
concentration of 0.08 or more.” Id. § 49.01(2).
The alternate definitions of intoxicated provide two methods of proving a
person is intoxicated—the impairment theory and the per se theory. Perez v. State, 495
S.W.3d 374, 382 (Tex. App.—Houston [14th Dist.] 2016, no pet.). “The first
definition [subsection A] is often referred to as the ‘impairment’ theory of
intoxication, and the second definition [subsection B] is often referred to as the
‘per se’ theory of intoxication.” Ahn v. State, No. 02-17-00004-CR, 2017 WL 6047670,
at *4 (Tex. App.—Fort Worth Dec. 7, 2017, no pet.) (mem. op., not designated for
publication). They “are not distinct offenses, distinct elements of the offense, or even
alternative means of committing the offense, but are instead alternative means by
which the State may prove intoxication.” Id. In this case, the State offered no

1Appellant describes the focus of his sufficiency challenge as follows: “Because Appellant does not argue that he operated a vehicle in a public place, Appellant’s discussion and argument will focus on the fact [that] the evidence was insufficient to prove Appellant was intoxicated.” Based on the substance of Appellant’s arguments, we construe this statement to mean that Appellant concedes that he was operating a motor vehicle in a public place and therefore challenges only the sufficiency of the evidence showing that he was intoxicated.
9
credible evidence of Appellant’s blood-alcohol content; it relied solely on proof that
Appellant was impaired, and the jury was charged only on the impairment theory.
In determining whether sufficient evidence supports a finding of intoxication,
appellate courts rely on a number of factors that are present in this case and do not
require the State to anticipate and rebut a claim that an impairment resulted from a
physical disability:
• It is axiomatic that one factor that a jury may consider in
determining whether a person was intoxicated is the consumption of
alcohol. For example,
The jury heard that appellant admitted to having consumed at least four beers on the night of the accident. Thus, there is some proof that alcohol was introduced into appellant’s body. The jury could have reasonably determined that the accident occurred because appellant lost the normal use of his faculties by reason of that introduction.

Navarro v. State, 469 S.W.3d 687, 695 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d) (op. on reh’g).
• Generally, “an officer’s opinion testimony based upon
experience and the observed facts that a defendant was intoxicated is
sufficient to establish the element of intoxication.” Ramirez v. State,
No. 02-09-00285-CR, 2010 WL 4676987, at *5 (Tex. App.—Fort Worth
Nov. 18, 2010, no pet.) (mem op., not designated for publication) (citing
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979)).
10
But as this court has previously noted, there must be supporting facts to
sustain the officer’s opinion. See id.
• “A defendant’s poor performance on the standardized field
sobriety tests is further evidence of intoxication.” Zill v. State, 355
S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also
McIntyre v. State, No. 02-17-00167-CR, 2018 WL 1866083, at *3 (Tex.
App.—Fort Worth Apr. 19, 2018, no pet.) (mem. op., not designated for
publication) (“A jury may also consider a defendant’s poor performance
on standardized field sobriety tests as evidence of intoxication.”); Finley
v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991,
pet. ref’d) (“Texas courts consistently uphold DWI convictions based
upon the opinion testimony of police officers who observed the
defendant’s unsatisfactory performance in field sobriety tests.”).
There is no question that an HGN test is considered both reliable
and probative of intoxication. The court of criminal appeals has held
that the HGN test is based on scientific theory and is admissible under
Texas Rule of Evidence 702 when properly administered by a qualified
officer. See Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App. 1994);
Horton v. State, No. 02-09-00158-CR, 2010 WL 3433776, at *2–3 (Tex.
App.—Fort Worth Aug. 31, 2010, no pet.) (mem. op., not designated for
publication). One limitation on the use of HGN test results is that an
11
officer may not testify that an HGN test’s findings correlate to a specific
blood-alcohol content. See Youens v. State, 988 S.W.2d 404, 406 (Tex.
App.—Houston [1st Dist.] 1999, no pet.) (“In other words, an officer
trained in administering the HGN test may give his opinion that a
suspect is under the influence of alcohol[] but may not testify to that
suspect’s exact blood[-]alcohol content.”). In this case, Appellant does
not challenge the qualifications of the trooper to administer the HGN
test or the manner in which he administered it.
• Finally, it is not the State’s burden to establish what a
defendant’s normal capabilities are as a contrast to what it contends is an
impaired state:
Appellant argues that the evidence is insufficient because the State failed to prove what appellant’s normal use of his mental and physical faculties were, and therefore, it did not prove that he had lost the normal use of his faculties. Appellant has not cited any authority in support of this proposition, nor are we aware of any. To the contrary, several courts of appeals, including this court, have addressed this issue and held that the State does not have to present evidence of a defendant’s normal abilities.

Ramirez v. State, No. 01-17-00568-CR, 2018 WL 3353052, at *3 (Tex.
App.—Houston [1st Dist.] July 10, 2018, no pet.) (citing Fogle v. State,
988 S.W.2d 891, 894 (Tex. App.—Fort Worth 1999, pet. ref’d); Reagan v.
State, 968 S.W.2d 571, 572 (Tex. App.—Texarkana 1998, pet ref’d);
Massie v. State, 744 S.W.2d 314, 316 (Tex. App.—Dallas 1988, pet. ref’d)).
12
C. The evidence supports the jury’s finding that Appellant was intoxicated
The record in this case is not overwhelming. Apparently, due to an equipment malfunction and the absence of a witness, the State lacked the scientific evidence
necessary to establish Appellant’s blood-alcohol content and thus to offer proof to
support a per se theory of intoxication. But that deficiency still left open the avenue
of proving intoxication under an impairment theory. The record before us contains
sufficient evidence to support a finding of intoxication under that theory.
To begin with, Appellant admitted, and the open container in the vehicle
demonstrated, that he had recently consumed alcohol. Based on the alcohol content
of the drink, the amount consumed from the container, and the cool temperature of
the can, Appellant had recently consumed an amount of alcohol roughly equivalent to
four beers. Thus, the record contains evidence of the recent and substantial
consumption of alcohol by Appellant.
With this evidence before the jury, the question devolves into whether that
alcohol had produced an intoxicating effect on him. The record contains that
evidence. For instance, Appellant began his encounter with the trooper by passing his
marked patrol vehicle going twenty miles per hour over the posted speed limit. A jury
could infer that this is evidence of a person “not having the normal use of mental or
physical faculties.” See Tex. Penal Code Ann. § 49.01(2).
13
The trooper’s testimony provides evidence of intoxication. Poor performance
on field sobriety tests in general, and the HGN test in particular, is probative of
intoxication. Here, the trooper conducted not one but two HGN tests on Appellant.
Appellant does not challenge the trooper’s competence or the manner in which he
administered the test. The lack of any challenges is understandable considering the
trooper’s decades of experience during which he had conducted almost one thousand
DWI investigations. The results of the HGN tests led the trooper to conclude that
Appellant was intoxicated. The only criticism raised to the HGN test results is that
the trooper noted in his report that he had found six clues of intoxication when he
had found only four. During his testimony, he quickly acknowledged his mistake and
indicated that the inability to determine the remaining clues resulted from Appellant’s
failure to follow the trooper’s instructions. See generally Murray v. State, 457 S.W.3d
446, 448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination.” (citing Hooper v. State, 214 S.W.3d 9, 12
(Tex. Crim. App. 2007))).
Further, Appellant’s counsel’s cross-examination of the trooper provided
support that the record might not otherwise have had. Defense counsel specifically
asked the trooper if he had considered the results of the two portable breath tests that
he had administered. He said that he did. Though counsel’s purpose was apparently
to undermine the trooper’s reliance on the results of the tests because he had not
14
waited long enough to administer the second test, the trooper’s rejoinder was an
explanation for why he felt that the second test was valid. Thus, even though the
portable breath tests did not provide Appellant’s blood-alcohol content for the jury to
consider, it did provide an additional basis for the trooper’s opinion that Appellant
was intoxicated.
And the trooper’s opinion provides more support for the jury’s determination
of intoxication. The trooper did not give an invalid bare opinion. Instead, he relied
on the results of the tests that he had conducted—the HGN test and the portable
breath test—which were captured on his body camera and shown to the jury.
Further, Appellant’s counsel raised no objection when the trooper stated his opinion
that Appellant was intoxicated. Thus, it constitutes additional evidence supporting
the jury’s determination. D. Appellant’s argument turns a blind eye to the standard of review regarding whether the record contains evidence from which the jury could reasonably infer that he was intoxicated
Appellant inventories a host of cases examining records in which the
defendants claimed that they suffered from a physical disability that accounted for
behavior that mimicked intoxication.2 In his argument, Appellant extracts factors
highlighted in those cases and notes the absence of those factors in his behavior.

2See Williams v. State, 307 S.W.3d 862 (Tex. App.—Fort Worth 2010, no pet.); Burkett v. State, 179 S.W.3d 18 (Tex. App.—San Antonio 2005, no pet.); Mitchell v. State, 2004 WL 1277907 (Tex. App.—Fort Worth June 10, 2004, no pet.) (mem. op., not designated for publication); Fogle, 988 S.W.2d at 892, 894.
15
Appellant appears to use this approach to frame an argument that the calculus in this
case dictates a finding that his disabilities, rather than his consumption of alcohol,
produced the behavior that the trooper attributed to intoxication. Appellant’s analysis
establishes that no two cases are the same but sidesteps the question of whether the
inference of intoxication drawn by the jury in this case was reasonable based on the
factors that were present.
Some of the conclusions reached by Appellant are at odds with the record. For
example, Appellant emphasizes that there was no evidence of alcohol on his breath.
But there was no reason to infer that Appellant had recently drunk alcohol from its
scent on his breath because he admitted that he had recently consumed the Four
Loko. Next, Appellant claims that he made no admission “indicating excessive
alcohol consumption” but then cites a case in which this court relied on evidence that
an appellant had consumed three or four beers. See Williams, 307 S.W.3d at 863. The
record in this case demonstrates the same amount of alcohol consumption by
Appellant. Then, Appellant claims that his driving did not “evince” intoxication. Yet
the record shows that Appellant passed a marked DPS vehicle going 20 miles per
hour over the posted 40 mile-per-hour speed limit. Appellant’s explanation is that his
speed was an attempt to remedy a mechanical problem with the vehicle, but a jury
could equally infer that Appellant’s conduct was reckless and was induced by alcohol
and that his failure to observe the law-enforcement vehicle that he was bearing down
on was induced by the same influence.
16
Appellant also characterizes the record as establishing that he had no unsteady
gait or slurred speech from alcohol consumption and that one explanation for his
failure to pass the one-leg-stand and walk-and-turn tests was his physical disabilities.
Appellant then states that the trooper “attributed Appellant’s inability to walk to
Appellant’s physical disabilities” and “testified Appellant’s inability to perform the two
tests was due to Appellant’s medical condition.” Instead, the trooper said that he did
not list the failure to pass the tests on his report because he did not know how much
of the failure to follow the instructions was related to Appellant’s “physical aspects”
and how much was related to alcohol. The jury, like the trooper, might have given
Appellant the benefit of the doubt because of his disability claims, but that does not
erase the other evidence in the record that supports a finding of intoxication.
Appellant emphasizes that the courts in the cases he cites relied on evidence of
bloodshot eyes or a refusal to take a blood or breath test. There was no evidence of
those factors in this case, but that does not cancel out the evidence of intoxication
that does exist.
Finally, Appellant notes that in certain cases, appellants claimed only at trial
that they suffered from a disability and did not mention the impairments when
arrested. Appellant claims he disclosed his disabilities to the trooper. He certainly
took the trooper’s lead when initially asked about whether he had a bad leg, and the
trooper gave him the benefit of the doubt for his inability to perform the field
sobriety tests requiring the use of his legs. But whatever support these facts lend to a
17
conclusion that Appellant was not intoxicated does not abrogate the existence of
those facts indicating that he was.
At bottom, Appellant’s argument is a variation of the theme that the State must
present proof of a defendant’s unimpaired state to establish that his impaired state
resulted from alcohol consumption. The State does not bear this burden. Nor was
the jury bound to accept Appellant’s theory of the case when the record contained
evidence supporting the State’s theory.
Accordingly, we overrule Appellant’s sole issue. IV. Modification of the judgment We do find one error in the trial court’s judgment. The judgment is captioned
“JUDGMENT ON VERDICT OF GUILTY PUNISHMENT FIXED BY
COURT.” The judgment recites, and the record establishes, that the jury assessed
Appellant’s punishment at thirty days in jail and recommended that the sentence be
suspended. To make the record speak clearly and to eliminate the possibility of
confusion, we modify the judgment by deleting the words following “guilty” so that
the judgment is captioned “JUDGMENT ON VERDICT OF GUILTY.” See Nelson
v. State, 149 S.W.3d 206, 213 (Tex. App.—Fort Worth 2004, no pet.) (stating that
appellate court may correct and reform a trial court judgment to make the judgment
congruent with the record).

Outcome: Having overruled Appellant’s sole issue but having modified the caption of the
judgment, the judgment of the trial court is affirmed as modified. See Tex. R. App. P. 43.2(b).

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