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Franco v. State

The appellant has not shown that his agreement to take the Intoxilyzer test was induced or coerced by the officer's alleged misstatement of the statutory consequences of a refusal.

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A jury found appellant John Milburn Franco guilty of driving while intoxicated. See Tex. Pen. Code Ann. � 49.04 (West Supp. 2002). The court assessed punishment at incarceration for 180 days and a $2000 fine, but suspended imposition of sentence and placed Franco on community supervision. In two points of error, Franco urges that the court erred by admitting in evidence the results of alcohol concentration and field sobriety tests. *fn1 We will affirm the conviction.

Deputy Weldon Campbell stopped Franco’s pickup truck for a traffic violation on May 20, 2000. Based on his observations and Franco’s performance on three field sobriety tests, the officer arrested Franco for DWI. Franco later took a breath test, which showed that he had an alcohol concentration of 0.22.

The information alleged that Franco was intoxicated under both statutory definitions: because he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body and because he had an alcohol concentration of 0.08 or more. Tex. Pen. Code Ann. � 49.01(2)(A), (B) (West Supp. 2002). The jury was authorized to convict Franco on both allegations and returned a general verdict of guilty.

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