XXVIII. Court of Appeals Should Not Re-Weigh Evidence

Perkins v. State, 19 S.W.3d 854 (Tex.App. – Waco 2000, pet. denied).

Officer came upon car parked in the middle of the road. Firefighter testified that defendant seemed intoxicated. There were beer cans in back seat noted by one officer and not by another officer. Officer noted strong odor of alcoholic beverage on defendant’s breath, slurred speech, disoriented, refused to give sample. Defendant admitted only one beer and no evidence he had more. Court of Appeals improperly re-weighed evidence, including how good defendant looked on videotape and substituted its findings for those of the jury and reversed. Case went to Court of Criminal Appeals which granted PDR and pointed out correct standard in 993 S.W.2d 116 (Tex.Crim.App. 1999). Upon rehearing, Court of Appeals found evidence factually sufficient and affirmed the conviction.