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Click here for the full text of this decision FACTS:On April 22, 2003, at 2 a.m., Officer James Hill stopped Kenneth J. Maxwell for driving 80 miles per hour in a 60-miles-per-hour zone on the West Freeway in Fort Worth. Officer Hill also noticed that Maxwell failed to use his turn signal when he changed lanes and that Maxwell was weaving. Maxwell admitted to Hill that he had been drinking after Hill noticed an odor of alcohol and Maxwell’s bloodshot eyes. Maxwell, however, refused to perform any sobriety tests in the field or later at the police department. After arresting Maxwell and taking him to the police department, Maxwell eventually submitted to a breath test approximately one hour later, which indicated he was legally intoxicated at 0.11. He was charged by information under two theories of intoxication: loss of normal use of mental and physical faculties or an alcohol concentration of at least 0.08. The trial court denied Maxwell’s pretrial motion to suppress the evidence and any statements obtained as a result of his arrest. A jury found him guilty. The trial court sentenced him to 180 days’ confinement with a $450 fine. The court suspended his sentence and placed him on 12 months of community supervision. HOLDING:Affirmed. In Maxwell’s first and second points, he contended that legally and factually insufficient evidence supported both of the state’s theories of intoxication: loss of normal use of his mental and physical faculties or an alcohol concentration of at least 0.08. In Maxwell’s legal sufficiency challenge, he complained about the lack of evidence to support the jury’s finding of a level of alcohol concentration of .08 or greater. In particular, he complained that because the test was “given within an hour of the stop,” there is only evidence of his alcohol concentration one hour after the stop as opposed to evidence of his blood alcohol concentration (BAC) at the time he was observed driving while allegedly intoxicated. But the court noted that the Court of Criminal Appeals has held that breath tests are probative and admissible even in the absence of retrograde extrapolation testimony. Thus, the court found that the breath test showing a BAC of .11 was some evidence of intoxication. Regarding factual sufficiency, Maxwell pointed to the arresting officer’s testimony conceding that Maxwell behaved normally and walked and talked normally. But in reviewing all of the evidence, including the evidence of Maxwell’s refusal to perform field sobriety tests, the court concluded that factually sufficient evidence supported the jury’s verdict. In his third point, Maxwell asserted that trial court erred in overruling his motion to suppress the evidence based upon a lack of probable cause to arrest Maxwell. Maxwell contended that his arrest was illegal, because it was made without probable cause. Maxwell, the court stated, contended “without authority” that the refusal to perform field sobriety tests cannot be used as a factor in establishing probable cause to arrest. The court noted other factors that supported the finding of probable cause other than the refusal to perform sobriety tests. Thus, the court concluded that sufficient evidence established the probable cause to arrest Maxwell. Accordingly, the court concluded that the trial court correctly denied Maxwell’s motion to suppress. In his fourth point, Maxwell asserted that the trial court erred in overruling the motion to suppress the breath test results, because he was not afforded his right to “contact a physician to obtain a specimen of his blood.” Maxwell contended that the police violated Texas Transportation Code �724.019(a)-(b) in denying him the opportunity to get an independent blood test. Section �724.019(a)-(b), the court stated, provides that a person arrested for a driving while intoxicated offense should be given a reasonable opportunity to contact a physician or nurse to take an additional specimen of blood once the person has submitted to the taking of a specimen of breath, blood, urine or other specimen. Subsection (c) of �724.019, however, provides that a peace officer is not required to transport someone in custody to a facility for testing. Moreover, subsection (d) provides that the “failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken” by the officer originally. Construing the statute, the court found that the Legislature specifically addressed the ramifications of “failure or inability” to obtain another specimen and “clearly provided that such failure or inability would have no effect on the admissibility of the specimen obtained by the officer.” Thus, the court found no trial court error in denying Maxwell’s motion to suppress on that basis. In his final point, Maxwell claimed that the trial court erred in overruling his objection to an instance of allegedly improper jury argument at the guilt-innocence phase of the trial. In particular, Maxwell stated, the prosecutor improperly suggested that defense counsel “was acting unethically in trying to distract the jurors from focusing on the evidence against appellant by”putting everyone else on trial.’” In response, the state contended that the argument was a proper response to defense counsel’s arguments that questioned some of the state’s witnesses, including Hill, Mark Fonderen and the intoxilyzer operator. The court agreed. OPINION:Livingston, J.; Livingston, Walker and McCoy, JJ.

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