                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-15-00096-CR


                               JACKIE FARLEY, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 364th District Court
                                     Lubbock County, Texas
            Trial Court No. 2013-400,142, Honorable William R. Eichman II, Presiding

                                    September 28, 2015

                              MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

         Appellant, Jackie Farley, appeals from his conviction for Driving While Intoxicated

(DWI).     As expressed through his sole issue, he believes the evidence is legally

insufficient to support the jury’s finding that he had lost the normal use of his mental or

physical faculties while operating a motor vehicle. That is, “evidence of his intoxication

was, on the whole, relatively weak.”        This was purportedly so because it generally

consisted of “one out of a possible twenty-four cues of intoxication during the driving

phase of [the] investigation, the presence of the legal odor of alcohol, a traffic infraction

characterized as ‘common’ and subjective FST [field sobriety tasks] are why [appellant]
was arrested and ultimately how he was convicted.” (Emphasis in original). So, in his

view, the State did not prove he lacked the normal use of his mental or physical

faculties due to the introduction of alcohol. We affirm.

       Standard of Review

       Claims of legal insufficiency are reviewed under the standard discussed in Dobbs

v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Per that standard, we view the

evidence in the light most favorable to the verdict and determine whether any rational

trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Id.    In making that determination, we are to remember that not only is

circumstantial evidence as probative as direct evidence in establishing guilt, but also

that circumstantial evidence alone may be enough to prove culpability. Id. So too must

the court recognize that the jury or factfinder is the sole judge of credibility and weight to

be attached to the testimony of witnesses, and where the record supports conflicting

inferences, we both presume that the jury resolved the conflicts in favor of the verdict

and defer to that determination. Id. Finally, each bit of evidence upon which guilt is

premised “need not point directly and independently to the guilt of the appellant, as long

as the cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Id.

       Elements of the Crime

       Next, to have secured a conviction, the State would have had to prove that

appellant was intoxicated while operating a motor vehicle in a public place. TEX. PENAL

CODE ANN. § 49.04(a) (West Supp. 2014). Intoxication can be established via one of

two ways. For instance, one can be shown to be intoxicated if he did not have “the

normal use of mental or physical faculties by reason of the introduction of alcohol, a


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controlled substance, a drug, a dangerous drug, a combination of two or more of those

substances, or any other substance into the body.” TEX. PENAL CODE ANN. § 49.01(2)(A)

(West 2011). Or, he may be intoxicated if his blood alcohol concentration is “0.08 or

more.” Id. § 49.01(2)(B).     Since appellant’s blood alcohol concentration was not

measured, the former way of proving intoxication was utilized at bar.

       Application

       The appellate record before us contains the following evidence.              Texas

Department of Public Safety Trooper Corey Kernell (Kernell) testified that he was on

duty and sitting at an intersection when he observed a vehicle traveling at a high rate of

speed about to run a stop sign. The driver “applied the brakes and slid partially through

the intersection, stopping past the white line.” This led the trooper to stop the vehicle.

At that point, he 1) encountered appellant driving the car and 2) noticed that appellant “.

. . had a strong odor of alcoholic beverage coming from his breath . . . red, glassy,

bloodshot eyes and . . . slurred speech.” These circumstances caused the trooper to

subject appellant to field sobriety testing. As appellant exited the car to undergo the

testing, appellant had to use the vehicle for support or balance, according to the trooper.

       While administering the test, the trooper observed that appellant 1) was slow to

respond to his directions, 2) had to be told several times to move back towards the

officer’s vehicle, 3) exhibited six clues purportedly indicative of intoxication when

subjected to the Horizontal Gaze Nystagmus (HGN) part of the test, 4) exhibited seven

of eight clues indicative of intoxication when he performed the “walk-and-turn” test,

those clues being his use of his arms for balance, stepping off the line, missing heel to

toe juxtaposition while taking his steps, taking an improper amount of steps, stopping

while taking steps and making an improper turn, 5) exhibited four clues indicative of


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intoxication when asked to perform the one-leg stand, which clues consisted of swaying,

using arms for balance, hopping, and placing his raised foot back on the ground to gain

balance, and 6) failed to recite the alphabet when asked. The non-HGN testing was

captured on a video, which video was subsequently admitted into evidence at trial. The

substance captured on the video confirmed, in many respects, the trooper’s description

of appellant’s performance on the tests.       Also captured on the video is appellant’s

admission that he had ingested two or three drinks.

       Evidence of intoxication includes such indicia as 1) slurred speech, 2) bloodshot

eyes, 3) the odor of alcohol on the person, 4) the odor of alcohol on the breath, 5)

unsteady balance, and 6) a staggered gait. Ubesie v. State, 379 S.W.3d 371, 376 (Tex.

App.—Amarillo 2012 no pet.); Harris v. State, 204 S.W.3d 19, 25 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref'd). Such indicia were present here. So too had appellant

come to an abrupt halt at the stop sign and been drinking (by his own admission.) This

evidence provided basis upon which a rational trier of fact could have found, beyond

reasonable doubt, that appellant had lost the normal use of mental or physical faculties

by reason of the introduction of alcohol. And while other evidence may have supported

a different determination, the jury was free to discount that evidence. Again, the task of

resolving evidentiary conflicts lay with it, and we must defer to its decision.

       Appellant’s sole issue is overruled, and the judgment is affirmed.

                                                                        Brian Quinn
                                                                        Chief Justice
       Do not publish.




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