      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00598-CR




                                Tony Walter Gordon, Appellant

                                                 v.

                                  The State of Texas, Appellee



  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
      NO. B-07-1378-S, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Tony Walter Gordon guilty of felony driving while

intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 2008).

The district court assessed punishment, enhanced by two previous felony convictions, at sixty years’

imprisonment. In two issues, appellant contends that the evidence is legally and factually

insufficient to sustain the guilty verdict. We overrule these contentions and affirm the conviction.

               The State’s only witness at the guilt stage was Department of Public Safety Officer

Todd Reed. Reed testified that at 11:10 p.m. on the night in question, he stopped a Ford Explorer

after seeing the vehicle speeding and making a turn without signaling. Appellant was the driver and

sole occupant of the vehicle. Reed testified that when he approached the Explorer, he noticed a

strong odor of an alcoholic beverage. Reed asked appellant to step out of the vehicle and saw that

he was unsteady on his feet. The officer also noticed that appellant’s eyes were bloodshot. Reed
testified that when he asked appellant if he had been drinking, appellant told him that he “drank a

six-pack at the Miles Cotton Fest.” Reed said that he later found three unopened cans of beer in the

Explorer, all of which were cold to the touch. Reed also testified that appellant told him that he had

taken two medications, “Soma and Loritab, and I think he had taken it thirty minutes earlier.”

                Reed testified that he administered the standard field sobriety tests to appellant at the

scene of the stop. He said that he observed six of six clues on the horizontal gaze nystagmus test,

five of eight clues on the walk-and-turn test, and three of four clues on the one-legged stand test.

According to the officer, the results of each test indicated intoxication. Based on these test results

and his earlier observations, Reed arrested appellant for driving while intoxicated.1

                Appellant agreed to an Intoxilyzer test at the jail, but he did not give an adequate

breath sample. Reed testified that appellant would pretend to blow into the machine or would blow

for two or three seconds, then stop. Eventually, after appellant consistently failed to blow into the

machine with the required force, Reed aborted the test with no result.

                The defense called two witnesses at the guilt stage. Kimberly Douangkesone,

appellant’s girlfriend and the owner of the Explorer, testified that she went to the scene of appellant’s

arrest to retrieve her vehicle and drive it home. She said that she spoke to appellant at the scene and,

in her opinion, he was not intoxicated. Helen Gail Baugh testified that she saw appellant give a

breath sample at the scene, a fact denied by Reed.

                When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential


   1
     A recording of these events made by the video equipment in Reed’s patrol car was introduced
in evidence and shown to the jury. The video is consistent with Reed’s testimony.

                                                   2
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In a legal sufficiency review, all the

evidence is reviewed in the light most favorable to the verdict; it is assumed that the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Clayton, 234 S.W.3d at 778.

                Appellant contends that the evidence is legally insufficient to prove that he was

intoxicated solely by alcohol as alleged in the indictment and found by the jury. He argues that his

statement to Reed that he had taken Soma and Loritab raises the possibility that his intoxication was

due to the drugs or to a combination of alcohol and the drugs. There is, however, no evidence

regarding the nature of these drugs or their effects. In particular, there is no evidence that use of the

drugs, either alone or in combination with alcohol, can result in intoxication.2 Viewing the evidence

in the light most favorable to the verdict, we conclude that a rational trier of fact could find all the

elements of the charged offence beyond a reasonable doubt. Issue one is overruled.

                In a factual sufficiency review, all the evidence is considered equally, including the

testimony of defense witnesses and the existence of alternative hypotheses. Clewis v. State, 922

S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin

1992, no pet.). Due deference must be accorded the fact finder’s determinations, particularly those

concerning the weight and credibility of the evidence, but the reviewing court may disagree with the

result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App.


   2
     The court of criminal appeals has stated that the combination of alcohol and drugs that make
an individual more susceptible to the influence of the alcohol is equivalent to intoxication by alcohol
alone. Gray v. State, 152 S.W.3d 125, 128 (Tex. Crim. App. 2004) (quoting Heard v. State, 665
S.W.2d 488, 490 (Tex. Crim. App. 1984)).

                                                   3
2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be deemed

factually insufficient if the evidence supporting the verdict is so weak as to make the finding of guilt

clearly wrong or manifestly unjust, or if the verdict is against the great weight and preponderance

of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006);

Johnson, 23 S.W.3d at 11.

                Insofar as the testimony of the defense witnesses suggests that appellant was not

intoxicated, we must defer to the jury’s apparent determination that this testimony was not credible.

The only other evidence favorable to appellant is his statement to Reed that he had taken two

medications. The suggestion that these drugs caused appellant’s intoxication does not predominate

over the evidence of his alcohol use. The jury’s determination that appellant was intoxicated by

alcohol was not manifestly unjust or against the great weight and preponderance of the available

evidence. Issue two is overruled.

                The judgment of conviction is affirmed.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: April 28, 2009

Do Not Publish



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