                                   NO. 12-19-00288-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

COLBY GRAY VIERS,                                §     APPEAL FROM THE 7TH
APPELLANT

V.                                               §     JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §     SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
          A jury found Colby Gray Viers guilty of felony driving while intoxicated and assessed
his punishment at imprisonment for seven years. In the first of two issues, Appellant contends
that the trial court erred in permitting the State to amend the indictment after trial commenced.
In his second issue, he contends that the evidence is insufficient to sustain the verdict. We
affirm.


                                          BACKGROUND
          Officer Michael Skinner of the Bullard Police Department stopped a vehicle driven by
Appellant for driving forty-nine miles per hour in a forty miles per hour zone, failing to dim his
high beam headlights while passing, and swerving over the center line of the highway into the
lane of oncoming traffic. The vehicle contained two passengers.
          Upon approaching the vehicle, Officer Skinner noticed an open container of beer on the
floorboard behind the driver’s seat. Appellant could not produce a driver’s license. Officer
Skinner smelled a strong alcoholic beverage odor as he spoke to Appellant. He also observed
Appellant’s slurred speech and bloodshot eyes. Appellant failed all three of the standardized
field sobriety tests given by Officer Skinner.
        When stopped, Appellant told Officer Skinner he consumed a couple of beers. Appellant
attributed his inability to perform one of the field sobriety tests to a serious leg injury as a child.
But he also acknowledged that he probably should not be driving. He refused to give a breath
sample.    Officer Skinner arrested Appellant for driving while intoxicated.                          A search of
Appellant’s vehicle revealed a second open container of beer and two used syringes, one of them
under the driver’s seat.
        Officer Skinner testified that at the jail, he noticed a change in Appellant’s demeanor.
Appellant resisted the officers and nursing staff when they attempted to draw a blood sample
pursuant to a warrant. The nurse noticed needle tracks on his arms. She was unable to draw any
blood because the veins had collapsed, apparently from intravenous drug use.                               Appellant
admitted to injecting “speed balls,” a combination of cocaine and heroin, but claimed to have
done so only once in the last previous months.


                                       AMENDMENT OF INDICTMENT
        In his first issue, Appellant complains that the trial court erred in permitting an
amendment of the indictment after the trial’s commencement.
Standard of Review and Applicable Law
        “The sufficiency of a charging instrument presents a question of law,” and the trial
court’s decision to allow the amendment of the indictment on the State’s motion is thus reviewed
de novo. See Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).
        “The practice and procedures relating to the use of indictments and informations,
including their contents, amendments, sufficiency, and requisites, are as provided by law.” TEX.
CONST. art. V § 12(b). “[R]equirements of an indictment are not mandated by the constitution,
but rather only by statute.” Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990).
        “All amendments of an indictment or information shall be made with the leave of the
court and under its direction.” TEX. CODE CRIM. PROC. ANN. Art. 28.11 (West 2006). Article
28.10 of the Code of Criminal Procedure provides in pertinent part, as follows:


   a.   After notice to the defendant, a matter of form or substance in an indictment or information may
        be amended at any time before the date that trial on the merits commences. On the request of the
        defendant, the court shall allow the defendant not less that 10 days, or a shorter period if requested
        by the defendant, to respond to the amended indictment or information.




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   b.   A matter of form or substance in an indictment or information may also be amended after the trial
        on the merits commences if the defendant does not object.
Id. art. 28.10 (West 2006).
        “An amendment is an alteration to the face of the charging instrument which affects the
substance of the charging instrument.” Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App.
1997), overruled on other grounds by Riney v. State, 28 s.W.3d 561 (Tex. Crim. App. 2000). In
Eastep, the court of criminal appeals recognized three situations where the alteration of the
charging instrument constitutes an abandonment rather than an amendment: (1) abandonment of
one or more alternative ways or means of committing an offense, (2) abandonment of an
allegation if the effect is to reduce the prosecution to a lesser included offense, and (3)
abandonment of surplusage, that is, language not legally essential to constitute the offense
alleged. Id. at 135. Abandonments do not invoke the requirements of Articles 28.10 and 28.11
of the code of criminal procedure. Id.; see also Chavis v. State, 177 S.W.3d 308, 311 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d).
Discussion
        In the original indictment, the State alleged that, at the time in question, Appellant was
intoxicated under either of the two definitions of intoxication contained in Section 49.01(2) of
the Texas Penal Code. See TEX. PENAL CODE ANN. § 49.01(2) (West 2011). In its motion, the
State sought to delete the accusation that Appellant was intoxicated by reason of “having an
alcohol concentration of 0.08 or more.” Id. § 49.01(2)(B). Appellant’s counsel stated, “no
objections.” The court granted the motion, and the indictment was physically altered to strike
out the second paragraph of the indictment alleging appellant’s blood alcohol content was 0.08
or more.
        On appeal, Appellant argues that the amendment of the indictment after trial effectively
charged an additional or different offense. The State argues that the deletion of an alternative
means of proof of intoxication is analogous to the deletion of an alternative manner and means of
committing the offense alleged. We agree with the State. The alteration of the indictment did
not charge an additional offense, but deleted one of the means of proving the same offense.
Therefore, the deletion of the second paragraph alleging that Appellant had an alcohol
concentration of 0.08 or more was not an amendment but an abandonment. See Eastep, 941
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hillchristina@example.org. Abandonments, as opposed to amendments, do not invoke the requirements of
Articles 28.10 and 28.11. Id.
        Moreover, even if we assume that the deletion of the per se definition of intoxication
from the indictment constituted an amendment, Appellant failed to preserve error, if any. On the
day the trial began and before the jury had been sworn, the State moved to abandon the second
paragraph of the indictment. Appellant stated, no objection to the change. The trial court
granted the State’s motion.      Both the Appellant’s counsel and the prosecutor initialed the
changes on the face of the indictment. Assuming, for the sake of argument, that the trial court
erred in allowing the change, Appellant waived such error by stating “no objection” to the
deletion. TEX. CODE CRIM. PROC. ANN. Art. 28.10(b) (West 2019); State v. Murk, 815 S.W.2d
556, 558 (Tex. Crim. App. 1991); Tyson v. State, 172 S.W.3d 172, 175 (Tex. App.—Fort Worth
2005, pet. ref’d).
        Appellant’s first issue is overruled.


                                  SUFFICIENCY OF THE EVIDENCE
        In his second issue, Appellant challenges the sufficiency of the evidence to support the
jury’s verdict.
Standard of Review and Applicable Law
        In his second issue, Appellant challenges the sufficiency of the evidence to support the
jury’s verdict.
        An appellate court reviews a challenge to the sufficiency of the evidence under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The
Jackson standard requires the reviewing court to review all the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found all of
the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789. The jury is the exclusive judge of the credibility of the witnesses and the weight to
be given their testimony, and the reconciliation of conflicts in the evidence. Whitaker v. State,
977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the record supports conflicting inferences,
we presume that the fact finder resolved the conflicts in favor of the prosecution and therefore
defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).



                                                4
         The elements of the offense of driving while intoxicated are (a) a person (b) is intoxicated
(c) while operating (d) a motor vehicle (e) in a public place. TEX. PENAL CODE ANN. § 49.04
(West Supp. 2019); Gray v. State, 152 S.W.3d 125, 131 (Tex. Crim. App. 2004).
         Intoxication may be proven in either of two ways: (1) the loss of the normal use of
mental or physical faculties through the introduction of alcohol, drugs, or other substances into
the body (impairment method), or (2) an alcohol concentration of 0.08 or more (per se method).
Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010); TEX. PENAL CODE ANN.
§ 49.01(2)(A). Evidence that the defendant was intoxicated at the time he was driving includes
erratic driving, post driving behavior such as stumbling, swaying, slurring or mumbling words,
inability to perform field sobriety tests or to follow instructions, bloodshot eyes, any admissions
by the defendant concerning what, when, or how much he had been drinking; in short, any and
all the usual indicia of intoxication. Kirsch, 306 hillchristina@example.org. A defendant’s refusal to give
blood or breath specimen is admissible at trial and probative of his intoxication. See Bartlett v.
State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008); TEX. TRANSP. CODE ANN. § 724.061 (West
2011).
Discussion
         Officer Skinner had ten years’ experience as a peace officer at the time of Appellant’s
arrest, much of that time spent on patrol. He testified that based on his observations, Appellant
was intoxicated while driving his vehicle. This testimony alone, considered in the light most
favorable to the verdict, was sufficient to establish Appellant’s intoxication.
         Officer Skinner testified that Appellant was speeding and swerved his vehicle into the
oncoming lane of traffic. When he approached Appellant, he noticed a strong odor of an
alcoholic beverage about Appellant. Appellant’s eyes were bloodshot, his speech was slurred
and he swayed while standing. He had difficulty following Officer Skinner’s instructions, and he
failed all three field sobriety tests. Appellant refused to give a breath specimen, and fought the
medical technicians attempting to draw a blood sample pursuant to a warrant. The evidence was
more than sufficient to prove Appellant’s intoxication and support the jury’s verdict. Viewing
the evidence in the light most favorable to the State, we conclude that the jury was rationally
justified in finding, beyond a reasonable doubt, that Appellant committed the offense of driving
while intoxicated. Appellant’s second issue is overruled.




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                                                   DISPOSITION
         The judgment of the trial court is affirmed.


                                                                               BILL BASS
                                                                                Justice



Opinion delivered September 9, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




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                                             (DO NOT PUBLISH)




                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 9, 2020


                                          NO. 12-19-00288-CR


                                       COLBY GRAY VIERS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0457-19)

                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
